tag:theconversation.com,2011:/au/topics/fatou-bensouda-15801/articlesFatou Bensouda – The Conversation2019-07-26T09:37:11Ztag:theconversation.com,2011:article/1208512019-07-26T09:37:11Z2019-07-26T09:37:11ZMigration in the Mediterranean: why it’s time to put European leaders on trial<figure><img src="https://images.theconversation.com/files/285539/original/file-20190724-110179-1h19eso.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Members of the NGO 'SOS Mediterranee' during the rescue of more than 250 migrants on a wooden boat off the Libyan coast.
</span> <span class="attribution"><span class="source">EPA-EFE/Christophe Petit Tesson</span></span></figcaption></figure><p>In June this year two lawyers filed a complaint at the International Criminal Court (ICC) naming European Union member states’ migration policies in the Mediterranean as crimes against humanity. </p>
<p>The court’s Prosecutor, Fatou Bensouda, must decide whether she wants to open a preliminary investigation into the criminality of Europe’s treatment of migrants. </p>
<p>The challenge against the EU’s Mediterranean migrant policy is set out in a 245-page document prepared by Juan Branco and Omer Shatz, two lawyer-activists working and teaching in Paris. They <a href="https://www.statewatch.org/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf">argue that EU migration policy</a> is founded in deterrence and that drowned migrants are a deliberate element of this policy. The international law that they allege has been violated – crimes against humanity – applies to state policies practiced even outside of armed conflict. </p>
<p>Doctrinally and juridically, the ICC can proceed. The question that remains is political: can and should the ICC come after its founders on their own turf?</p>
<p>There are two reasons why the answer is emphatically yes. First, the complaint addresses what has become a rights impasse in the EU. By taking on an area stymying other supranational courts, the ICC can fulfil its role as a judicial institution of last resort. Second, by turning its sights on its founders (and funders), the ICC can redress the charges of neocolonialism in and around Africa that have dogged it for the past decade.</p>
<h2>ICC legitimacy</h2>
<p>The ICC is the world’s first permanent international criminal court. Founded in 2002, it currently has 122 member states. </p>
<p>So far, it has only prosecuted Africans. This has led to persistent critiques that it is a neocolonial institution that “only chases Africans” and only tries rebels. In turn, this has led to pushback against the court from powerful actors like the African Union, which <a href="http://www.loc.gov/law/foreign-news/article/african-union-resolution-urges-states-to-leave-icc/">urges its members to leave the court</a>. </p>
<p>The first departure from the court occurred in 2017, when <a href="https://www.nytimes.com/2017/10/27/world/africa/burundi-international-criminal-court.html">Burundi left</a>. The <a href="https://www.nytimes.com/2019/03/17/world/asia/philippines-international-criminal-court.html">Philippines</a> followed suit in March of this year. Both countries are currently under investigation by the ICC for state sponsored atrocities. <a href="https://justiceinconflict.org/2018/09/10/a-graceful-exit-for-south-africas-icc-withdrawal-plans/">South Africa threatened withdrawal</a>, but this seems to have blown over.</p>
<p>In this climate, many cheered the news of the ICC Prosecutor’s <a href="https://www.hrw.org/news/2019/04/23/afghanistan-icc-abandons-field">2017 request to investigate</a> crimes committed in Afghanistan. As a member of the ICC, Afghanistan is within the ICC’s jurisdiction. The investigation included atrocities committed by the Taliban and foreign military forces active in Afghanistan, including members of the US armed forces. </p>
<p>The US, which is not a member of the ICC, <a href="https://www.hrw.org/news/2002/08/03/us-hague-invasion-act-becomes-law">violently opposes</a> any possibility that its military personnel might be caught up in ICC charges. In <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1448">April 2019</a> the ICC announced that a pre-trial chamber had shut down the investigation because US opposition made ICC action impossible. </p>
<p>Court watchers <a href="https://www.hrw.org/news/2019/04/23/afghanistan-icc-abandons-field">reacted with frustration and disgust</a>.</p>
<h2>EU migration</h2>
<p>An estimated <a href="https://www.theguardian.com/world/2018/jun/20/the-list-europe-migrant-bodycount">30,000 migrants have drowned</a> in the Mediterranean in the past three decades. International attention was drawn to their plight during the migration surge of 2015, when the image of <a href="https://www.theguardian.com/world/2015/dec/31/alan-kurdi-death-canada-refugee-policy-syria-boy-beach-turkey-photo">3-year-old Alan Kurdi</a> face-down on a Turkish beach circulated the globe. More than one million people entered Europe that year. This led the EU and its member states to close land and sea borders in the east by erecting fences and completing a Euro 3 billion deal with Turkey to keep migrants there. NATO ships were posted in the Aegean to catch and return migrants. </p>
<p>Migrant-saving projects, such as the Italian Mare Nostrum programme that <a href="https://www.refworld.org/pdfid/548713624.pdf">collected 150,000 migrants in 2013-2014</a>, were replaced by border guarding projects. Political pressure designed to reduce the number of migrants who made it to European shores led to the <a href="https://www.theguardian.com/world/2018/sep/12/migrant-rescue-ships-mediterranean">revocation and non-renewal of licenses</a> for boats registered to NGOs whose purpose was to rescue migrants at sea. This has led to the current situation, where <a href="https://qz.com/1639293/only-one-refugee-rescue-boat-operated-by-aid-groups-remains-in-the-mediterranean-sea/">there is only one boat patrolling</a> the Mediterranean.</p>
<p>The EU has handed search and rescue duties over to the Libyan coast guard, which has been accused repeatedly of <a href="https://www.theguardian.com/global-development/2019/jan/21/eu-support-for-libya-contributes-to-extreme-abuse-of-refugees-human-rights-watch-study">atrocities against migrants</a>. European countries now negotiate Mediterranean migrant reception on <a href="https://www.theguardian.com/world/2019/jul/23/eu-countries-agree-plan-to-handle-migrants-and-refugees">a case-by-case basis</a>.</p>
<h2>A rights impasse</h2>
<p>International and supranational law applies to migrants, but so far it has inadequately protected them. The <a href="https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf">law of the sea</a> mandates that ships collect people in need. A series of refusals to allow ships to disembark collected migrants has <a href="https://www.jus.uio.no/nifs/english/research/projects/oslos/events/seminars/2018-11-14-migration.html">imperilled this international doctrine</a>. </p>
<p>In the EU, the <a href="http://www.europarl.europa.eu/RegData/etudes/PERI/2017/600414/IPOL_PERI(2017)600414_EN.pdf">Court of Justice</a> oversees migration and refugee policies. Such oversight now includes a two-year-old deal with Libya that some claim is tantamount to “<a href="https://www.theguardian.com/commentisfree/2019/feb/05/eu-deal-libya-refugees-libyan-detention-centres">sentencing migrants to death</a>.” </p>
<p>For its part, the European Court of Human Rights has established itself as “<a href="https://theconversation.com/why-the-european-court-of-human-rights-is-no-friend-to-migrants-42129">no friend to migrants</a>.” Although the court’s 2012 decision in <a href="https://www.amnesty.org/en/latest/news/2012/02/italy-historic-european-court-judgment-upholds-migrants-rights/">Hirsi</a> was celebrated for a progressive stance regarding the rights of migrants at sea, it is unclear <a href="https://brill.com/view/journals/emil/20/4/article-p396_3.xml?lang=en">how expansively that ruling applies</a>.</p>
<p>European courts <a href="https://hudoc.echr.coe.int/eng-press#%7B%22itemid%22:%5B%22003-6443361-8477507%22%5D%7D">are being invoked</a> and making rulings, yet the journey for migrants has only grown more desperate and deadly over the past few years. Existing European mechanisms, policies, and international rights commitments are not producing change. </p>
<p>In this rights impasse, the introduction of a new legal paradigm is essential. </p>
<h2>Fulfilling its role</h2>
<p>A foundational element of ICC procedure is complementarity. This holds that the court only intervenes when states cannot or will not act on their own. </p>
<p>Complementarity has played an unexpectedly central role in the cases before the ICC to date, as African states have self-referred defendants claiming that they do not have the resources to try them themselves. This has greatly contributed to the ICC’s political failure in Africa, as rights-abusing governments have handed over political adversaries to the ICC for prosecution in bad faith, enjoying the benefits of a domestic political sphere relieved of these adversaries while <a href="https://www.press.uchicago.edu/ucp/books/book/distributed/A/bo47223014.html">simultaneously complaining of ICC meddling in domestic affairs</a>.</p>
<p>This isn’t how complementarity was supposed to work. </p>
<p>The present rights impasse in the EU regarding migration showcases what complementarity was intended to do – granting sovereign states primacy over law enforcement and stepping in only when states both violate humanitarian law and refuse to act. The past decade of deadly migration coupled with a deliberately wastrel refugee policy in Europe qualifies as just such a situation.</p>
<p>Would-be migrants don’t vote and cannot garner political representation in the EU. This leaves only human rights norms, and the international commitments in which they are enshrined, to protect them. These norms are not being enforced, in part because questions of citizenship and border security have remained largely the domain of sovereign states. Those policies are resulting in an ongoing crime against humanity. </p>
<p>The ICC may be the only institution capable of breaking the current impasse by threatening to bring Europe’s leaders to criminal account. This is the work of last resort for which international criminal law is designed. The ICC should embrace the progressive ideals that drove its construction, and engage.</p><img src="https://counter.theconversation.com/content/120851/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kerstin Carlson receives funding from The Dreyer's Fund for research on international criminal justice in Africa. </span></em></p>The ICC may be the only institution capable of breaking the current legal impasse.Kerstin Bree Carlson, Associate Professor International Law, University of Southern DenmarkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1204332019-07-16T11:15:05Z2019-07-16T11:15:05ZWhy the Ntaganda judgment shows that the ICC has found its footing<figure><img src="https://images.theconversation.com/files/284259/original/file-20190716-173334-14txm0d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Congolese Bosco Ntaganda in the courtroom during the closing statements of his trial in The Hague.</span> <span class="attribution"><span class="source">EPA-EFE/Bas Czerwinski</span></span></figcaption></figure><p>In early July the International Criminal Court (ICC) <a href="https://www.icc-cpi.int/drc/ntaganda">convicted</a> Congolese warlord Bosco Ntaganda of war crimes, torture, and sexual slavery. Nicknamed <a href="https://www.bbc.com/news/world-africa-48907866">“Terminator”</a>, the 46-year-old is the first person to be convicted of sexual slavery by the ICC. He is only the <a href="https://www.bbc.com/news/world-africa-48907866">fourth person convicted</a> for international crimes by the ICC since its creation in 2002. </p>
<p>In what has become a predictable pattern, the Ntaganda judgment has been met by strong reactions. </p>
<p>On the one hand there is <a href="https://www.justiceinfo.net/en/tribunals/icc/41897-ntaganda-s-conviction-a-sweeping-win-for-the-icc-prosecutor.html">satisfaction</a> about the conviction, particularly as it represents <a href="https://ilg2.org/2019/07/08/gender-based-crimes-a-monumental-day-for-the-icc/">the first international conviction for the crime of sexual slavery.</a> </p>
<p>But there is also <a href="https://www.theguardian.com/commentisfree/2019/jul/08/warlord-bosco-ntaganda-democratic-republic-of-the-congo-congolese">frustration</a> that the judgment addresses only a small part of the horrors of violence in the Democratic Republic of Congo (DRC). The ICC’s internal management of the case and the judges has also been <a href="http://opiniojuris.org/2019/03/29/judge-ozaki-must-resign-or-be-removed/">criticised</a>. </p>
<p>What’s absent from the various reactions is that there’s no drama, no intake of collective breath as greeted the ICC’s acquittals of <a href="https://theconversation.com/bemba-acquittal-overturns-important-victory-for-sexual-violence-victims-99948">Jean-Pierre Bemba</a> and <a href="https://theconversation.com/gbagbos-acquittal-suggests-confusion-and-dysfunction-at-the-icc-110200">Laurent Gbagbo</a>, or its <a href="https://www.justsecurity.org/63622/the-international-criminal-court-decision-on-afghanistan-time-to-start-a-new-conversation/">decision</a> not to proceed with investigations into atrocities in Afghanistan because facing off against a cantankerous US</p>
<blockquote>
<p><a href="https://www.icc-cpi.int/afghanistan">would not serve the interests of justice</a>.</p>
</blockquote>
<p>The absence of bombshells reflects the plain vanilla successes of the Ntaganda decision. The case involved the ICC methodically, even dully, setting out the proof and rationale for its conviction in more than 500 pages. The judgment is evidence of the ICC acting as a court, and nothing more. </p>
<p>This quiet, plodding, judicial work is the correct way forward for the institution. It may also show the <a href="https://www.icc-cpi.int/iccdocs/otp/OTP-Strategic-Plan-2013.pdf">strategy outlined</a> by the ICC’s second (and current) prosecutor, Fatou Bensouda, is bearing fruit.</p>
<h2>Mixed record in DRC</h2>
<p>Crimes committed in Ituri, the mineral rich region of the DRC that borders Rwanda and Uganda, were the subject of the <a href="https://www.legal-tools.org/doc/7ed751/pdf/">first situation investigated by the ICC prosecutor</a> when the court opened. The violence in the DRC, <a href="https://news.un.org/en/story/2019/03/1033842">which continues even today</a>, belies comprehension. It’s been called “the rape capital of the world” and</p>
<blockquote>
<p><a href="https://www.cbc.ca/news/world/congo-the-most-dangerous-place-on-earth-for-women-1.1031760">the worst place on earth to be a woman</a>.</p>
</blockquote>
<p>Bosco Ntaganda <a href="https://www.icc-cpi.int/drc">is the fifth defendant</a> charged with crimes in Ituri, and its third conviction. Prior to Ntaganda, defendants <a href="https://www.icc-cpi.int/drc/lubanga">Thomas Lubanga</a> (2012) and <a href="https://www.icc-cpi.int/drc/katanga">Germain Katanga</a> (2014) were convicted by the ICC. Both, however, received relatively light sentences for limited crimes. </p>
<p>Given the brutal, extensive violence committed by paramilitary groups in Ituri, the convictions against Lubanga and Katanga also arguably <a href="https://www.hrw.org/news/2006/07/31/dr-congo-icc-charges-raise-concern">misrepresented, possibly even ignored</a>, the most serious crimes committed in Ituri. Both defendants were additionally qualified by <a href="https://www.opendemocracy.net/en/openglobalrights-openpage/justice-denied-iccs-record-in-drc/">some observers</a> as “small fish” and not the important government leaders that the ICC should be prosecuting.</p>
<p>Two other prosecutions for crimes committed in Congo failed altogether. In 2011, the pre-trial chamber declined to affirm charges against <a href="https://www.icc-cpi.int/drc/mbarushimana">Callixte Mbarushimana</a>, and in 2012, <a href="https://www.icc-cpi.int/drc/ngudjolo">Mathieu Ngudjolo Chu</a> was acquitted.</p>
<p>Ntaganda’s case was originally attached to Lubanga’s, and severed only because Ntaganda spent seven years at large. An arrest warrant was issued against him in 2006. It was only in 2013, after a shake-up in his <a href="https://www.aljazeera.com/news/africa/2013/08/201382411593336904.html">M23 rebel group</a> ousted him from power, that he then turned himself in at the US embassy in Kigali.</p>
<p>Ntaganda was charged with 18 counts of war crimes and crimes against humanity for atrocities committed in the DRC from 2002 to 2003, and found guilty on all 18 counts. </p>
<p>In finding Ntaganda guilty of sexual slavery, the trial chamber <a href="https://www.icc-cpi.int/CourtRecords/CR2017_03920.PDF">set new precedent</a>, by determining that sexual violence directed at one’s own army is also a crime recognised under international criminal law.</p>
<h2>What comes next?</h2>
<p>The trial chamber still has not issued Ntaganda’s sentence. The prosecution, defence and victims representatives <a href="https://www.icc-cpi.int/CourtRecords/CR2019_03592.PDF">will have the next few weeks</a> to file their sentencing requests. The defence has 30 days to file an appeal, and has already announced that it intends to do so.</p>
<p>It is expected that the defence will continue to object to the presence of Judge Ozaki. In February 2019, Ozaki became a “part time” judge as well as the Japanese ambassador to Estonia, which post she held <a href="https://www.ijmonitor.org/2019/05/judge-ozaki-resigns-ambassadorial-post-to-stay-on-ntaganda-trial/">until April</a>. Ntaganda’s lawyers argued that serving in a government capacity while simultaneously sitting as a judge constitutes a conflict of interest, and filed a request to disqualify Ozaki. In June, a majority of all ICC judges, sitting in plenary, <a href="https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-02/06-2355">dismissed the request</a>, leaving Ozaki to continue to serve as a part of the three judge panel that convicted Ntaganda.</p>
<p>The Ntaganda judgment is long and assessments of its import in specialised international law blogs have only begun to emerge. </p>
<p>What’s clear is that the criticisms directed at the ICC about the judgment have little to do with the judgment itself. In its steady consideration of witness testimony and reasoned application of international criminal law to established as well as new terrain, Ntaganda is a return to the basics of jurisprudence. </p>
<p>It might not get all the headlines or suck all the air out of the room, as methodical, careful, reasoned court decisions rarely do. But this in itself represents real progress, and an actual significant victory, for the court.</p><img src="https://counter.theconversation.com/content/120433/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kerstin Carlson receives funding from The Dreyers Fund for law-related research in Africa. </span></em></p>Ntaganda’s conviction represents real progress, and an actual significant victory, for the ICC.Kerstin Bree Carlson, Associate Professor International Law, University of Southern DenmarkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1152692019-04-15T20:46:02Z2019-04-15T20:46:02ZBy not investigating the U.S. for war crimes, the International Criminal Court shows colonialism still thrives in international law<figure><img src="https://images.theconversation.com/files/268795/original/file-20190411-44814-gk5sqt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Prosecutor Fatou Bensouda is seen in the courtroom of the International Criminal Court in 2018.</span> <span class="attribution"><span class="source">(Bas Czerwinski/AP)</span></span></figcaption></figure><p>On April 5, the United States <a href="https://www.nytimes.com/2019/04/05/world/europe/us-icc-prosecutor-afghanistan.html">revoked the visa of the International Criminal Court’s (ICC) chief prosecutor, Fatou Bensouda</a>, for her attempts to open an investigation into alleged war crimes committed by the U.S. in Afghanistan. A week later, <a href="https://www.theglobeandmail.com/world/us-politics/article-facing-hurdles-from-us-war-crimes-judges-reject-afghan-probe/">judges at the ICC rejected Bensouda’s request</a> to open a probe into U.S. involvement in Afghanistan.</p>
<p>While rights advocates condemned this move as amounting to U.S. interference in <a href="https://www.nytimes.com/2019/04/05/world/europe/us-icc-prosecutor-afghanistan.html">the workings of the ICC</a>, it’s more alarming than mere obstruction — and is rooted in the pre-existing hierarchy and embedded colonial structures in international legal order.</p>
<p>Bensouda’s visa revocation underscores the existing systematic inequality in international legal order. This is rooted in the presumed hierarchy by a group of elite nations that have dominated international order from a position of assumed racial, cultural, political, historical, material, economic and legal superiority. </p>
<p>These developments come in light of comments made by the Trump administration’s national security advisor, John Bolton, who <a href="http://time.com/5393624/john-bolton-international-criminal-court/">delegitimized the role of the ICC</a> in a speech he delivered in September 2018. He said that “the U.S. will take any means necessary” to overcome “unjust prosecution by this illegitimate Court.” </p>
<p>Countries like the U.S. have always enjoyed dominance through this presumed superiority, enabling them to suggest other nations are like-minded when it comes to the international legal order. </p>
<p>The U.S. and other powerful nations have not only been successful in maintaining the status quo of imbalance inherent in international law, but have also been instrumental in establishing the rules governing that legal order.</p>
<p>With tectonic political shifts across the world, the ICC’s representatives — and jurists like Bensouda — represent some of the last vestiges of resisting the dominant global legal order by attempting to hold the West accountable for their transgressions in the global South. </p>
<p>Unfortunately, however, the Court’s unwillingness to move beyond its imperial roots is evident from the decision to reject Bensouda’s request. The ICC has blatantly redefined the notion of “justice” and has been <a href="https://iccforum.com/africa">preoccupied</a> with African states while turning a blind eye to equally serious crimes committed by the U.S.</p>
<h2>Meddling is routine</h2>
<p>Needless to say, <a href="https://www.globalresearch.ca/us-interfered-in-elections-of-at-least-85-countries-worldwide-since-1945/5601481">U.S. interference and intervention in dozens of sovereign nation states is commonplace</a>. Meddling with the functioning of one of the highest judicial bodies in the world is therefore a familiar pattern of American supremacy in the
international legal order.</p>
<p>The move by the U.S. to revoke Bensouda’s visa is an expression of that supremacy through intimidation and bullying of representatives of international institutions. However, it also
points to the U.S. wielding power in the age of <a href="http://www.msnbc.com/rachel-maddow-show/international-gathering-trump-finds-himself-isolated-and-alone">its new-found sense of self-alienation</a>, which manifests into ongoing imperialist tendencies that influence the decisions made by international institutions.</p>
<p>This perpetuates the West’s practice and tendency to use global legal institutions such as the International Criminal Court to continuously persecute and demonize the global South.</p>
<p>Bensouda’s efforts have certainly not been halted by the U.S. government’s move against her. However, the revocation of her visa and the Court’s validation of such a move by rejecting Bensouda’s request raises questions on broader justice issues, what is being considered within the purview of the ICC, and the legitimacy of international law.</p>
<p>Such tactics should not come as a surprise. The U.S. has had <a href="http://nymag.com/intelligencer/2019/01/american-exceptionalism-is-a-dangerous-myth.html">a long history of supposed “exceptionalism”</a> facilitated by international law when it comes to its participation in the global legal order and its violations of international humanitarian and human rights law with impunity.</p>
<p>For instance, the U.S. <a href="https://casebook.icrc.org/case-study/united-states-hamdan-v-rumsfeld/">Supreme Court</a> in 2006 qualified the so-called war on terror as a form of armed conflict. However, as Jeremy Waldron, a professor at New York University School of Law, pointed out, <a href="https://www.jstor.org/stable/4099502">the U.S. consistently violated the Geneva Conventions during the war through extraordinary rendition techniques and unlawful detention</a>. This was done under the pretext that the particular category of armed conflict that the U.S. was involved in lacked explicit mention in the Geneva Conventions.</p>
<h2>Disregarding international law</h2>
<p>Bensouda’s role in investigating these alleged war crimes has the potential to shine a spotlight on the <a href="https://www.globalresearch.ca/the-united-states-disregard-for-international-law-is-a-menace-to-venezuela-and-latin-america/5654399">historical American practice of disregarding international law.</a> </p>
<p>By engaging in bullying tactics, the U.S. is now reaching a new level of abrogation of international legal order. This could not only prevent the Court from being able to investigate the alleged violations, but also has the potential to reinforce its hegemonic selective power when it comes to the implementation of international criminal law. </p>
<p>U.S. dominance in the global legal order does not stop at its borders. It has a ripple effect, compelling other major powers with military, economic and political clout to follow suit.</p>
<p>We’ve witnessed similar practices by Israel as it denies United Nations Human Rights Council investigators entry to the occupied territories of Palestine as they investigate alleged war crimes and crimes against humanity <a href="https://www.latimes.com/world/middleeast/la-fg-israel-united-nations-20141112-story.html">in Gaza</a>. And in some cases there has been
systematic pressure from the highest offices in the UN pushing for withdrawal of <a href="https://www.bbc.com/news/world-middle-east-39310154">scholarly reports</a> on the situation in the Middle East.</p>
<p>While past incidents have often resulted in the <a href="https://www.independent.co.uk/news/world/un-official-rima-khalef-israel-apartheid-regime-palestinians-territory-gaza-strip-west-bank-united-a7638906.html">resignation</a> of the individuals who have been blocked by these forces, it’s refreshing to see Bensouda’s resistance “<a href="https://www.cbc.ca/news/world/icc-judge-bensouda-1.5086254">without fear or favour</a>.” </p>
<p>The U.S. and Israel have been particularly effective in resisting the legitimacy of the global legal order.
<a href="https://www.washingtonpost.com/world/2019/03/22/no-president-has-recognized-israels-control-golan-heights-trump-changed-that-with-tweet/?noredirect=on&utm_term=.4aca1393c334">By recognizing</a> Israel’s illegal annexation of Golan Heights, the U.S. administration under President Donald Trump is legitimizing contempt towards international legal principles.</p>
<p>At the heart of this lies international law’s deep connections to structures of power and inequality. Thankfully, international legal order is a contested space in which committed jurists like Bensouda are still fighting oppression through their unapologetic acts of resistance.</p>
<p>It is now up to the ICC to change its role from a mechanism that facilitates inequality in international law to one that perpetuates and supports resistance for justice.</p><img src="https://counter.theconversation.com/content/115269/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>International law has deep connections to structures of power and inequality. Thankfully, committed jurists like Fatou Bensouda are fighting oppression through their unapologetic acts of resistance.Helyeh Doutaghi, Doctoral Student, Carleton UniversityJay Ramasubramanyam, Doctoral Candidate, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1142032019-03-27T13:30:28Z2019-03-27T13:30:28ZHow The Gambia is going about its search for truth and reconciliation<figure><img src="https://images.theconversation.com/files/265812/original/file-20190326-36276-zonmi7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gambian refugees return home from Senegal on January 21, 2017, the day Yahya Jammeh conceded defeat and left the country.</span> <span class="attribution"><span class="source">EPA/Legnan Koula</span></span></figcaption></figure><p>Seeking uncomfortable truths about atrocities perpetrated against citizens has become an integral part of rebuilding societies after the fall of authoritarian regimes or at the end of armed conflicts. </p>
<p>In West Africa, <a href="https://www.usip.org/publications/1999/06/truth-commission-nigeria">Nigeria (1999)</a>, <a href="https://www.usip.org/publications/2002/11/truth-commission-sierra-leone">Sierra Leone (2000)</a>, <a href="https://link.springer.com/chapter/10.1007/978-1-4020-3237-0_5">Ghana (2002)</a>, <a href="https://www.usip.org/publications/2006/02/truth-commission-liberia">Liberia (2005)</a> and <a href="https://acjr.org.za/resource-centre/us-department-of-state-human-rights-report-cote-divoire-2012">Cȏte d’Ivoire (2012)</a> are among countries that have walked this path.</p>
<p>The setting up of the Truth, Reconciliation and Reparations Commission in The Gambia is no different. It follows over 20 years of authoritarian rule under Yahya Jammeh marked by egregious violations of human rights. The crimes included torture, disappearances and extrajudicial killings of people perceived to be opponents by the dreaded National Intelligence Agency and Jammeh’s loyal death squad, the Jungulars. </p>
<p>It took the <a href="https://theconversation.com/how-west-africa-built-the-muscle-to-rout-dictators-and-keep-the-peace-71688">intervention of the West African regional powers</a> to install Adama Barrow after his surprise electoral victory over Jammeh in elections held in 2016. When Barrow took over one of the first promises was to establish a truth commission to chronicle past atrocities. He <a href="https://www.aljazeera.com/news/2017/01/adama-barrow-yahya-jammeh-leaving-guinea-170121175618203.html">considered</a> this a necessary first step towards national reconciliation and peace-building. He said at the time: </p>
<blockquote>
<p>Before you can act, you have to get the truth, to get the facts together. </p>
</blockquote>
<p>After extensive consultations with ordinary citizens, civil society organisations and international human rights institutions, a new law was passed in 2017 to facilitate the setting up of a truth and reconciliation commission. </p>
<p>The act required that an historical record be put down of the nature, causes and extent of human rights abuses committed under Jammeh between July 1994 and January, 2017. The commission’s mandate includes investigating violations and abuses of human rights and identifying who was involved; establishing the identity of victims, their fate and the extent of the harm suffered; and finally determining what evidence has been destroyed to conceal violations and abuses.</p>
<p>The process is to be welcomed because families will finally know how their relatives disappeared or were killed. In the course of the hearings, public apologies by perpetrators will be offered. But searching for truth is often difficult. Through testimonies and the collection of information from various places, the commission will come across many truths of what happened. The complex task will be how to establish what’s truthful, and what is not. </p>
<h2>The commission’s remit</h2>
<p>The Commission requires witnesses to be truthful in their evidence. For this reason, it has adopted a key International Criminal Court (ICC) <a href="http://legal.un.org/icc/statute/99_corr/cstatute.htm">procedure</a> for getting its witnesses to testify on the truthfulness of their evidence. Article 69 (1) of this procedure states that witnesses shall</p>
<blockquote>
<p>give an undertaking as to the truthfulness of the evidence to be given by that witness</p>
</blockquote>
<p>This is an affirmation to witnesses that the nation is interested in nothing, but the truthfulness of the evidence.</p>
<p>The difficulty in The Gambia’s approach in search of truth is that people who committed crimes against humanity face prosecution. Under <a href="https://static1.squarespace.com/static/5a7c2ca18a02c7a46149331c/t/5a8451b4e4966bfad91329e9/1518621128178/truth%2C+reconcilation+and+reparations+commission+act%2C+2017.pdf">Article 19 (3) of the Gambia commission act</a>, </p>
<blockquote>
<p>Amnesty shall not apply to acts which form part of a crime against humanity.<br>
Under the circumstance, some important disclosures by perpetrators could be concealed for fear of future prosecution.</p>
</blockquote>
<p>The process followed by Ghana was quite different. It offered a blanket immunity to perpetrators of past atrocities. This could allow for important disclosures and also a good means to chronicle how most serious crimes were perpetrated which could be difficult through The Gambia’s approach. </p>
<p>The good thing about The Gambia’s approach is that allowing criminal trials for most serious crimes means holding perpetrators accountable for their crimes. </p>
<h2>Extrajudicial killings</h2>
<p>The commission begun sitting on 7 January, 2019. Since then it has conducted 87 sittings at which a number of former soldiers and past and present commissioned officers of the Gambia National Army have testified. Their testimony has mainly been on the events of the July 1994 coup which ousted the country’s first president Dawda Jawara. </p>
<p>Other officers have testified on the botched coup of 11 November 1994.</p>
<p>So far, a number of revelations on extrajudicial killings in the 11 November massacre have been laid bare. Some have made confessions about these killings, even within military barracks. An army colonel who was himself a victim of abuse supervised by his senior has also come forward. Another officer, a lieutenant-colonel, witnessed dead bodies of people shot in their barracks under the auspices of the military junta of Yahya Jammeh, and also the two mass graves in the Yundum barracks.</p>
<h2>Justice in all forms</h2>
<p>Speaking at the launch of the 11-member commission headed by a former senior official of the United Nations, Lamin Sise, President Barrow <a href="https://www.chinadailyhk.com/articles/251/137/188/1539673244479.html">declared</a> the “dark days” experienced under Yahya Jammeh were over. Typical of truth commissions, he rehashed the “never again” catchphrase stressing to his fellow Gambian compatriots not to revisit the country’s authoritarian past.</p>
<p>Barrow urged the commission to put victims at the centre of the process, arguing that the inclusion of reparations in the commission’s work was to ensure that the victims of the past regime received justice in all forms. </p>
<p>The Gambian-born International Criminal Court prosecutor, Fatou Bensouda, <a href="https://www.icc-cpi.int/itemsDocuments/20181015-otp-stat-ENG.pdf">acknowledges</a> the complexities and uniqueness of past truth commissions in Africa and elsewhere. However, she points out that setting aside accountability of perpetrators of the most serious crimes could have a negative effect on the long term sustainable peace and social cohesion. </p>
<p>From the sittings so far, there is no doubt the commission will unravel the circumstances of some extrajudicial killings and disappearances necessary for families to know how their relatives were killed and buried. What is unclear is how Yahya Jammeh, who has been the key person in the execution of these atrocity crimes, would have the opportunity to respond to allegations being made against him.</p><img src="https://counter.theconversation.com/content/114203/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Abdul-Jalilu Ateku received funding from the Commonwealth Scholarship Commission in the United Kingdom</span></em></p>Criminal trials await those found responsible for the most serious crimes in The Gambia.Abdul-Jalilu Ateku, Researcher in conflict, peace and security, University of NottinghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/879072017-11-24T12:24:13Z2017-11-24T12:24:13ZLibya and ICC: not indicting Khalifa Haftar makes mockery of international justice<p>The International Criminal Court (ICC) is <a href="http://www.middleeasteye.net/news/international-law-group-filed-icc-case-against-haftar-accusing-him-war-crimes-511971722">under pressure</a> to prosecute Libyan warlord Khalifa Haftar for crimes against humanity during the civil war that has devastated the country. London-based human rights lawyers Guernica 37 submitted a dossier to the court about Haftar and his forces that included allegations of torture, summary executions and excessive destruction. </p>
<p>Field Marshal Haftar is head of the Libyan National Army, the Western-backed force that helped overthrow former president Muammar Gaddafi in 2011. He is closely allied to the government based in the eastern city of Tobruk, which controls much of the country’s oil fields and has long refused to cooperate with the UN-endorsed rival administration in Tripoli led by Fayez al-Sarraj, the prime minister. </p>
<p>Yet regardless of the strength of the case against Haftar, the chances of him being prosecuted look slim. When it comes to pursuing would-be war criminals through the ICC, politics has a habit of getting in the way. Sadly, Libya is well on the way to becoming the archetypal example. </p>
<h2>Selective indictments</h2>
<p>Libya is not a party to the ICC’s <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">founding statute</a>, but the court has jurisdiction over the territory thanks to a <a href="https://www.icc-cpi.int/libya">referral</a> from the UN Security Council in 2011. So far the ICC has issued five Libya-related arrest warrants, starting with three in the year of the referral: against <a href="https://www.icc-cpi.int/pages/record.aspx?uri=1099321">Gaddafi himself</a>, his son <a href="https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/11-01/11-3">Saif al-Islam</a>, and his brother-in-law and former head of intelligence <a href="https://www.icc-cpi.int/pages/record.aspx?uri=1099332">Abdullah al-Senussi</a>. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/195863/original/file-20171122-6039-ru7dyz.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/195863/original/file-20171122-6039-ru7dyz.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/195863/original/file-20171122-6039-ru7dyz.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=679&fit=crop&dpr=1 600w, https://images.theconversation.com/files/195863/original/file-20171122-6039-ru7dyz.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=679&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/195863/original/file-20171122-6039-ru7dyz.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=679&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/195863/original/file-20171122-6039-ru7dyz.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=854&fit=crop&dpr=1 754w, https://images.theconversation.com/files/195863/original/file-20171122-6039-ru7dyz.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=854&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/195863/original/file-20171122-6039-ru7dyz.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=854&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Mahmoud el-Werfalli.</span>
</figcaption>
</figure>
<p>Two years later, in 2013, the court issued a warrant against <a href="https://www.icc-cpi.int/libya/khaled">Al-Tuhamy Mohamed Khaled</a>, former head of the internal security agency. It wasn’t until this August that it indicted someone not connected to the Gaddafi regime – <a href="https://www.libyaherald.com/2017/08/15/international-criminal-court-issues-arrest-warrant-for-saiqas-mahmoud-warfali/">Mahmoud el-Werfalli</a>, the field commander of the Special Forces Brigade (Al-Saiqa). </p>
<p>El-Werfalli is answerable to Haftar through Al-Saiqa’s close affiliation with the Libyan National Army. Indeed, the ICC chief prosecutor Fatou Bensouda recently <a href="https://refugeesmigrants.un.org/icc-prosecutor-urges-handover-al-saiqa-brigade-commander-others-wanted-alleged-crimes-libya">directly appealed</a> to Haftar to have el-Werfalli turned over, since he is accused of the torture and murder of 33 people in Benghazi. </p>
<p>Yet neither el-Werfalli nor the other indicted men have been brought to The Hague for trial. All but Gaddafi are alive, but the continuing chaos has made it difficult for police and security forces to extradite them. Many <a href="https://www.globalresearch.ca/libyan-rebels-and-international-criminal-court-icc-battle-over-seif-al-islam-gaddafis-son/5337498">have also criticised</a> the ICC for being political in its pursuits and practising one-sided justice that has favoured the anti-Gaddafi forces and ultimately the UN Security Council member states. </p>
<p>The reality is that war crimes have almost certainly been committed by all sides in this bloody conflict. Besides Guernica 37, another outfit named Lawyers for Justice in Libya, based in London and Tripoli, <a href="https://www.theguardian.com/law/2017/nov/04/iccs-investigation-libya-war-crimes-male-rape-court-hague-trial">has been</a> urging the court to be “more proactive” against claims of countless atrocities against civilians, including systematic male rape. Equally, the ICC should arguably look at the <a href="http://www.bbc.co.uk/news/av/world-europe-33854238/libya-s-migrants-treated-like-animals">callous treatment</a> of migrants in Libyan detention centres, since this too could qualify as a war crime. </p>
<h2>Politics before justice?</h2>
<p>The ICC’s reputation in Libya was not helped by allegations that its former chief prosecutor Luis Moreno Ocampo <a href="http://www.spiegel.de/international/world/ocampo-affair-the-former-icc-chief-s-dubious-libyan-ties-a-1171195.html">allegedly</a> had business ties to a man closely linked to Haftar. It raises questions about whether it helped the warlord avoid indictment in the earlier years of the civil war.</p>
<p>After Ocampo was replaced by Fatou Bensouda in 2012, the policy of pursuing only Gaddafi henchmen appeared to continue. This year’s decision to indict el-Werfalli was on the face of it a welcome change of direction. Yet that happened after Bensouda paid a <a href="https://www.thepeninsulaqatar.com/article/10/07/2017/Foreign-Minister-meets-Chief-Prosecutor-of-ICC">controversial visit</a> to Qatar in July and met with the country’s foreign minister and emir, prompting <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/08/31/will-the-international-criminal-courts-latest-target-in-libya-be-brought-to-justice/?utm_term=.a2cfba7caa9d">claims</a> the two events were linked.</p>
<p>Qatar has allegedly played a very important role throughout the Libyan conflict <a href="https://www.huffingtonpost.com/giorgio-cafiero/the-uae-and-qatar-wage-a-_b_8801602.html">by supporting</a>, alongside Turkey, the Islamist factions that have been fighting Haftar’s army. In turn, the eastern government of Libya has been <a href="https://www.middleeastobserver.org/2017/05/12/libya-uae-uses-us-made-warplanes-to-support-the-russian-backed-khalifa-haftar/">backed by</a> the likes of United Arab Emirates, the Saudis, Egypt and the Russians. When the Saudis and several other Middle Eastern countries <a href="https://www.theguardian.com/world/2017/jun/05/saudi-arabia-and-bahrain-break-diplomatic-ties-with-qatar-over-terrorism">cut off</a> diplomatic relations with Qatar in June, so did Tobruk. </p>
<p>The reactions of France, the UK and the US to the latest pressure on Haftar have been striking – bear in mind they are three of the five permanent members of the UN Security Council that gave the ICC jurisdiction in Libya. When the court indicted el-Werfalli, these countries issued a joint statement <a href="https://www.middleeastobserver.org/2017/08/20/39232/">welcoming</a> an announcement from Haftar that he would investigate the claims against his subordinate. The statement made no explicit reference to the ICC or the arrest warrant, in a sign that the West was not backing Bensouda’s move. </p>
<p>In the face of the more recent calls for Haftar himself to be prosecuted, the same countries have been silent. With the French president, <a href="http://www.france24.com/en/libya-pm-serraj-rival-ceasefire-agreement-paris-france-conference-macron">Emmanuel Macron</a>, and the UK foreign secretary, <a href="http://www.middleeasteye.net/news/boris-johnson-meets-libyan-renegade-general-khalifa-haftar-510069746">Boris Johnson</a>, both having held talks with Haftar in recent months, the West appears to have decided that any lasting peace requires his involvement. </p>
<p>This makes the ICC’s pursuit of el-Werfalli a mystery – putting pressure on Haftar and his henchmen via the court may undermine the warlord’s likely candidacy in next spring’s <a href="https://www.theatlantic.com/news/archive/2017/07/libyan-rivals-agree-to-a-ceasefire-and-elections/534897/">presidential elections</a>. All the same, Haftar’s strong international support should ensure he is not indicted personally. The longer the court ignores him, the stronger the sense that prevailing political conditions are more relevant to ICC business in Libya than protecting and promoting human rights. </p>
<p>The ICC should operate in a fair manner free of double standards, but time and again it has failed to do so. Numerous African countries <a href="http://www.theeastafrican.co.ke/news/Claims-of-ICC-bias-and-double-standards-at-ASP-annual-meeting/2558-3467836-4h8fb2z/index.html">have objected</a> to the disproportionate number of indictments against black leaders while, for example, Tony Blair has never been pursued over Iraq. Meanwhile, the ICC’s selective interventions in Uganda <a href="http://www.swisspeace.ch/fileadmin/user_upload/Media/Topics/Dealing_with_the_Past/Resources/Parrott_Louise_The_Role_of_the_International_Criminal_Court.pdf">have prompted</a> criticisms that it prioritises peace over justice. </p>
<p>The truth is that the international community’s attitude to justice and accountability risks fostering a culture of impunity for human rights violations. At best, non-Western countries take the ICC’s pronouncements with a pinch of salt. At worst, they see it as a modern vehicle for Western imperialism.</p><img src="https://counter.theconversation.com/content/87907/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ilia Xypolia does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Libyan warlord and presidential hopeful looks likely to avoid a summons to The Hague.Ilia Xypolia, Research fellow, University of AberdeenLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/700872017-01-11T20:14:34Z2017-01-11T20:14:34ZChild victim or brutal warlord? ICC weighs the fate of Dominic Ongwen<figure><img src="https://images.theconversation.com/files/149207/original/image-20161208-31352-gey470.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Dominic Ongwen, a senior commander in the Lord's Resistance Army, in a court room in The Hague. </span> <span class="attribution"><span class="source">Reuters/Peter Dejong</span></span></figcaption></figure><p>The trial of <a href="https://www.icc-cpi.int/uganda/ongwen">Dominic Ongwen</a> before the International Criminal Court (ICC) in The Hague is like none other springing from the killing fields of the Great Lakes of Africa. These include the prosecution of the first person ever to be convicted by the ICC, <a href="https://www.icc-cpi.int/drc/lubanga">Thomas Lubanga</a>. He was accused of mass human rights violations as a rebel leader in the Democratic Republic of Congo. Also ongoing is the trial of <a href="https://www.icc-cpi.int/drc/ntaganda">Bosco Ntaganda</a>, another Congolese.</p>
<p>Ongwen is a former commander of the <a href="https://www.theguardian.com/katine/2007/oct/20/about.uganda">Lord’s Resistance Army (LRA)</a>, a particularly brutal rebel group in Uganda. Its ruthless campaigns in Uganda and in neighbouring countries since the late 1980s encompassed <a href="https://www.icc-cpi.int/uganda">murder, rape and torture</a>. The organisation also recruited child soldiers and engaged in sexual slavery, including forcibly abducting young girls to act as “bush wives” for LRA fighters. </p>
<p>The LRA started as a rebellion in northern Uganda against Yoweri Museveni who overthrew Tito Okello, a northerner, to become president in 1986. Nearly two million people were displaced at the height of the insurgency and more than 10,000 killed in rural massacres. </p>
<p>Led by Joseph Kony, the highly mobile group later moved to South Sudan, eastern Congo and as far afield as Central African Republic. A UNICEF <a href="https://www.unicef.org/har07/files/Uganda.pdf">report</a> estimated that tens of thousands of children and youth had been abducted by the LRA between 1986 and 2005. </p>
<p>Ongwen, who is in his early 40s, is charged with the greatest number of crimes ever faced by an accused person before the international court. In March, the court <a href="https://www.icc-cpi.int/CourtRecords/CR2016_02331.PDF">confirmed</a> 70 charges of crimes against humanity and war crimes against him. </p>
<p>Aside from the scale of the case, one aspect that makes it unique is that Ongwen himself is a former child soldier. He was forcibly abducted by the LRA as a child walking home from school. <a href="https://www.youtube.com/watch?v=OXoT2I27oMU">Some accounts</a> suggest he was so small and frail at the time of his abduction that he had to be carried by other recruits. </p>
<p>But he went on to climb through the ranks of the LRA command. The ICC case concerns crimes allegedly committed by Ongwen himself, and by his subordinates, from 2002-2005.</p>
<h2>Past victimisation is no excuse</h2>
<p>In her <a href="https://www.icc-cpi.int//Pages/item.aspx?name=2016-12-06-otp-stat-ongwen">opening statement</a> in the Ongwen trial the ICC Prosecutor, Fatou Bensouda, noted that </p>
<blockquote>
<p>The evidence of many of the child victims in this case could be, in other circumstances, the story of the accused himself… But having suffered victimisation in the past is not a justification, nor an excuse to victimise others.</p>
</blockquote>
<p>The shift of narrative here from the court’s first judgment in <a href="https://www.icc-cpi.int/drc/lubanga">Lubanga</a> is <a href="https://justiceinconflict.org/2016/04/20/shifting-narratives-ongwen-and-lubanga-on-the-effects-of-child-soldiering/">notable</a>. In that case, Lubanga was tried and convicted of the crime of recruiting and using child soldiers. The court <a href="https://www.icc-cpi.int/pages/record.aspx?uri=1438370">focused</a> on the trauma suffered by former child soldiers and the lasting impact of that suffering. </p>
<p>By contrast, in Ongwen, the prosecutor emphasised </p>
<blockquote>
<p>the choice that he made; the choice to embrace the murderous violence used by the LRA and to make it the hallmark of operations carried out by his soldiers.</p>
</blockquote>
<p><a href="https://justiceinconflict.org/2016/04/11/the-dominic-ongwen-trial-and-the-prosecution-of-child-soldiers-a-jic-symposium/">Some authors</a> have argued that Ongwen’s status as a former victim should act as a partial defence to his later actions or should, at a minimum, be treated as a mitigating factor in sentencing if he is convicted. But this would assume that victims are devoid of choice over their actions by reason of their victimhood. The picture is, of course, much more nuanced than that, as Alcinda Honwana has pointed out in her <a href="http://www.upenn.edu/pennpress/book/14183.html">pioneering study</a> of child soldiers. </p>
<p>Criminal law is concerned with an individual’s actions and whether they possessed the intent to commit criminal acts, and not the factors that may have led them to commit the actions. This is why in domestic criminal trials perpetrators of sexual abuse who are themselves former victims of such abuse are still found culpable for their actions. </p>
<p>Criminal responsibility is a question of <a href="http://www.bloomsbury.com/au/answering-for-crime-9781841137537/">answerability</a>; it declares certain actions to be wrong and calls those who are accused of having perpetrated such wrongs to answer for their actions.</p>
<h2>Dismissing the sympathy plea</h2>
<p>While the prosecutor will no doubt have a challenge in overcoming the victim-perpetrator narrative that is likely to cast a shadow over the case, it seems unlikely that Ongwen’s status as a former child soldier can be successfully raised as a defence to the charges against him. </p>
<p>There is a defence of duress included in the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">ICC Statute</a>. But this is limited to situations of imminent threat where the harm caused is not greater than the harm avoided. It would be difficult for Ongwen to argue that his alleged orders as an adult were made under duress. </p>
<p>Ultimately, the prosecutor was right in pointing out in her opening statement that the court will not decide on whether Ongwen deserves sympathy, </p>
<blockquote>
<p>but whether he is guilty of the serious crimes committed as an adult, with which he stands charged.</p>
</blockquote><img src="https://counter.theconversation.com/content/70087/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yvonne McDermott does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Criminal responsibility is a question of answerability; it declares certain actions to be wrong and calls those who are accused of having perpetrated such wrongs to answer for their actions.Yvonne McDermott, Associate Professor of Law, Swansea UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/690592016-11-18T13:48:15Z2016-11-18T13:48:15ZHow the International Criminal Court can survive Russian and African scorn<p>Russia has <a href="http://edition.cnn.com/2016/11/16/world/russia-quits-international-criminal-court/">announced</a> it will “unsign” the statute of the International Criminal Court (ICC), which its Foreign Ministry says has “failed to meet the expectations to become a truly independent, authoritative international tribunal”. Its decision comes after three African countries began the process of leaving; the Philippines’ president, Rodrigo Duterte, signalled that his country could be next.</p>
<p>This all suggests a significant shift in global politics. Just as Britain has voted to leave the EU and the US has chosen the exuberantly anti-internationalist Donald Trump to be president, countries the world over are rushing to reclaim sovereignty and reject supranational scrutiny. The ICC, a vital institution tasked with ensuring that governments prosecute perpetrators of atrocity, is caught in the headlights.</p>
<p>Established in 2002 to try individuals accused of “the most serious crimes of international concern”, the court’s jurisdiction is dependent on the consent of states or on referrals from the UN Security Council. It therefore survives and thrives largely because states allow it to. </p>
<p>This has always been a key problem. The US and Russia have never formally backed the court, although Russia did sign its founding document, the Rome Statute (hence the recent “unsigning”). They also haven’t gone out of their way to impede it, however, being apparently happy for the prosecutor to focus her resources on Africa’s woes. But times are changing.</p>
<p>As Trump declared victory and Putin took Russia’s name off the Statute, the ICC’s chief prosecutor, Gambian lawyer Fatou Bensouda, sent a surprising signal proving she is ready to challenge their countries’ actions abroad.</p>
<p>The court has jurisdiction if the actions in question occurred in the territory of a member state, and that includes Afghanistan. Shortly after Trump won, she issued a <a href="http://www.nytimes.com/2016/11/15/world/asia/united-states-torture-afghanistan-international-criminal-court.html?_r=0">report</a> alleging that American interrogation techniques in Afghanistan amounted to “the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape”.</p>
<p>The US has so far responded with what might be called deflective acknowledgement, not refuting Bensouda’s allegations but instead highlighting its own domestic court standards, which it <a href="https://www.theguardian.com/law/2016/nov/15/us-army-and-cia-may-be-guilty-of-war-crimes-afghanistan-says-icc">says</a> provide a “robust national system of investigation and accountability that more than meets international standards”.</p>
<p>Far from a blithe dismissal, that response suggests at least some degree of thoughtful engagement with what the court is doing. Russia’s <a href="http://europe.newsweek.com/ukraine-ceasefire-violations-exceed-1000-day-osce-516632?rm=eu">involvement</a> in Crimea and eastern Ukraine is similarly impugned in the document, adding to pressure that had been mounting from the court’s investigation into the <a href="http://www.ecfr.eu/article/commentary_in_the_shadow_of_ukraine_seven_years_on_from_russian_3086">2008 Georgia conflict</a>.</p>
<p>If the timing of Bensouda’s report seems calculated to be as awkward as possible, the truth is that she had little choice but to hurry up and release it.</p>
<h2>Putting them on notice</h2>
<p>Throughout October the ICC was rocked when a string of African states, dismayed at the apparent “neo-colonialist” tendencies of an institution that had focused its resources on Africa’s profusion of armed conflicts, began withdrawing from the court altogether. </p>
<p><a href="http://www.aljazeera.com/news/2016/10/burundi-moves-quit-international-criminal-court-161012132153065.html">Burundi</a> was the first, citing the court’s double standards: “since the creation of the ICC … not a single Western war criminal has been indicted”. In truth, it was probably more concerned about ongoing investigations of its government’s alleged sponsorship of crimes against humanity. <a href="https://theconversation.com/south-africas-reasons-for-leaving-the-icc-dont-quite-add-up-67481">South Africa</a> and <a href="http://www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html">The Gambia</a> followed swiftly afterwards; Kenya is reportedly <a href="https://theconversation.com/whats-at-stake-as-kenya-weighs-withdrawal-from-the-icc-68353">weighing a similar move</a>. </p>
<p>Bensouda’s report on American and Russian behaviour showed that she’s ready to embrace a brave new strategy, and take on the challenge set by Burundi to make the court less Africa-focused. But if holding “the West” to account for international crimes once seemed difficult, recent political developments may only make it harder. </p>
<p>Whereas a Clinton administration would probably have kept up the Obama administration’s generally pro-engagement policies, Trump could return the US to the uncompromising stance of the early George W. Bush years, epitomised by the unconventional powers enshrined in the 2002 American Service Members’ Protection Act, or <a href="http://www.csmonitor.com/World/Europe/2009/0213/p05s01-woeu.html">Hague Invasion Act</a>, which effectively allows for an invasion of the Netherlands in the event that US personnel are put on trial there.</p>
<p>More troubling still is the domino effect that Trump has potentially set off. Putin’s declaration that he will be “unsigning” the Rome Statute is technically meaningless; Russia was never a fully-fledged member of the ICC anyway, and the court will retain jurisdiction over any questionable Russian actions in countries such as Georgia and Ukraine. As a signal to the court and its supporters, though, it tallies with the collective turn against internationalised accountability. </p>
<p>But is this really the end of the ICC? Far from it. In this new political climate of post-globalist tendencies, the world needs the ICC more than ever. Even if its courtrooms are empty, its work goes on: documenting atrocities, pressurising states’ domestic politics, and putting abusive governments on alert. And thanks to Bensouda’s latest announcements, it can no longer reasonably be accused of ignoring the most powerful states. </p>
<p>That Russia and the US have rejected the court indicates that those at the top of the international order are indeed troubled by what it thinks and does. We should not underestimate the power of the law to bring about change, even when it can’t quite reach the places it needs to go, and even when it seems most unlikely. </p>
<p>The ICC owes it to Burundi (and indeed to all African states) to uphold this standard. If it does, it could yet enter a brave new era.</p><img src="https://counter.theconversation.com/content/69059/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Chadwick has previously received funding from the Arts and Humanities Research Council</span></em></p>Rumours of the ICC’s imminent demise have been greatly exaggerated.Mark Chadwick, Lecturer in Law, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/544212016-02-16T13:32:39Z2016-02-16T13:32:39ZDisbelief and division at the ICC: inside the Laurent Gbagbo trial<p>Lesson learned: always check the microphones. Just after the start of the Hague trial of former Côte d'Ivoire president Laurent Gbagbo, prosecutor Eric MacDonald <a href="http://www.bbc.co.uk/news/world-africa-35526267">accidentally revealed the names</a> of four anonymous prosecution witnesses within reach of a live microphone. The names were heard in the courtroom and the public gallery, and the recordings have been shared on social media.</p>
<p>The clearly disconcerted presiding judge, Cuno Tarfusser, <a href="https://www.youtube.com/watch?v=GQBHKOl3KAI">wondered</a> whether this incident “of utmost and inexcusable gravity” was due to “recklessness, superficiality or stupidity.” He did not <a href="http://www.bbc.co.uk/news/world-africa-35526267">wish</a> to “speculate about something else”, alluding to hypothetical foul play. The judge formally apologised to the witnesses and ordered an internal investigation.</p>
<p>The incident highlights the difficult balancing act between holding transparent trials and prioritising witness and victim protection. And having observed the prosecutor’s opening statements from the public gallery, I saw the reactions of the two defendants’ close supporters – reactions that revealed the deep fault lines in this case.</p>
<p>Gbagbo served as president of Côte d’Ivoire between 2000 and 2010. In 2010, he disputed the results of presidential elections that he officially lost, sparking a five-month political crisis that left more than 3,000 people dead. He is <a href="https://www.hrw.org/news/2016/01/25/laurent-gbagbo-and-charles-ble-goude-trial">on trial</a> with Charles Blé Goudé, the longtime leader of a youth movement known as Jeunes Patriotes (Young Patriots). Gbagbo appointed him minister for youth in 2010 during the crisis. </p>
<p>Gbagbo and Blé Goudé were transferred to the International Criminal Court in <a href="http://www.bbc.co.uk/news/world-15946481">2011</a> and <a href="http://www.bbc.co.uk/news/world-africa-26765453">2014</a> respectively, and were charged as indirect co-perpetrators of crimes against humanity allegedly committed as part of a plan to keep Gbagbo in power “at any cost”. The two have both written <a href="http://justiceinconflict.org/2016/01/20/a-self-portrait-from-the-hague-all-you-need-to-know-about-what-laurent-gbagbo-wants-you-to-know/">tell-all</a> <a href="http://justiceinconflict.org/2016/01/28/mattresses-and-democratic-bombs-charles-ble-goude-in-his-own-words/">books</a> in which they refute such allegations.</p>
<p>I was at the ICC on the first day of the Gbagbo-Blé Goudé trial and waited with about 300 of their supporters outside the court’s shiny new permanent building in The Hague. One woman told me, only half-jokingly: “They built a new building just to try our president!” Protesting the portrait that was painted of Gbagbo as a <a href="http://www.bbc.co.uk/news/world-13044496">dictator</a> during the 2010-2011 crisis, another fan chanted sarcastically: “Give us back our dictator!”</p>
<p>Inside the court, diplomats, NGOs, journalists and members of Gbagbo and Blé Goudé’s close entourage filled the public gallery. Following the trial through headphones with simultaneous French and English translation, audience members have a clear view of the judges, prosecution and legal representative for victims teams on the left, both defence teams on the right, and both defendants sitting behind their respective representatives. For identity protection concerns, audience members cannot, however, see witnesses and victims testifying.</p>
<p>From inside the courtroom, one can look up and see members in the public gallery. After the second day’s hearings, Gbagbo stood up and saluted his supporters – who waved back ecstatically and left the gallery singing the Ivoirian anthem.</p>
<h2>Disbelief, guffaws, and amulets</h2>
<p>Since all the ICC’s criminal charges concern acts that took place in Abidjan, much of the evidence will be photo and video footage of the urban warfare that took place there. But rumours and conspiracy theories are rife in Côte d’Ivoire – and there are suspicions that evidence of this sort can be fabricated and altered. </p>
<p>Rumours have spread that video footage showing women lying on the ground, wounded from gunfire after an attack on a pro-Ouattara march in the Abobo neighbourhood of Abidjan, had been fabricated. When the prosecutor showed the graphic video in court, many of the pro-Gbagbo supporters reacted strongly, contesting its authenticity. For others, the dissonance between the gravity of the women’s injuries and the doubts of some supporters was jarring. </p>
<p>Another sticking point has been the relations between Ivoirian ethnic groups. As part of his case, the prosecutor wants to establish that Gbagbo and his “inner circle” encouraged crimes against perceived Ouattara supporters, who (very broadly) often share some combination of various characteristics: origins in northern Côte d’Ivoire and/or other West African countries, Muslim faith, and/or Dioula ethnicity. </p>
<p>The prosecution accused Blé Goudé of having ordered pro-Gbagbo youth to monitor “foreigners” and search for those who wore amulets known as “gris-gris”. At this, the Gbagbo supporters in the public gallery guffawed. To them, Ivoirians are not as ethnically divided as the prosecution contends – “gris-gris” are supposedly not worn exclusively by northerners and therefore couldn’t be a target sign for persecution. </p>
<p>The impression that foreign lawyers are trying Ivoirians without understanding the country’s nuances is a rallying point for those who contest the ICC’s legitimacy. But, ultimately, it is up to the judges to weigh this scepticism against well-documented evidence of persecution of pro-Ouattara supporters.</p>
<p>But who gets to determine whether or not a trial is political?</p>
<h2>Problematic partiality</h2>
<p>In her opening statement, the ICC prosecutor, Fatou Bensouda, proclaimed the trial apolitical, emphasising that it is not trying to determine either who won the elections or who should have won them. I immediately heard a chorus of incredulous groans from Gbagbo’s supporters. As they see it, this trial is the finale of a campaign that set out to oust Gbagbo as president with the help of France, a campaign waged first with hijacked elections and now with an instrumentalised ICC.</p>
<p>One of the most trenchant criticisms of the trial so far is that, by trying only the Gbagbo side without trying members of the Ouattara side (some of whom <a href="http://mg.co.za/article/2015-07-08-ivory-coast-charges-pro-ouattara-rebel-leaders-with-war-crimes">are suspected</a> of serious crimes), the court is revealing its political nature. This line of criticism is what professor of law Darryl Robinson <a href="http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9671765&fileId=S0922156515000102">calls</a> the “apologia” critique: the idea that by not trying members loyal to the incumbent Ouattara, the ICC is deferring to politics, thereby lacking the “principled independence” and “critical bite” that a court should have.</p>
<p>But the prosecutor’s strategy needs to be viewed in light of the ICC’s very particular nature. The Office of the Prosecutor requires co-operation from governments in order to bring a case to trial, and states’ refusal to co-operate has led to cases being <a href="https://theconversation.com/after-the-collapse-of-the-kenyatta-case-how-is-the-icc-supposed-to-help-victims-34991">suspended</a> before. At the crux of this trial’s inherent politicality is the tension between pursuing effective yet impartial prosecutions, bearing in mind all the conflict’s victims.</p>
<p>It is likely the trial will last several years. If so, the verdict will be handed down just in time for the run-up to Côte d'Ivoire’s next presidential elections in 2020 – when Gbagbo’s supporters can channel their reaction to the verdict into the political process.</p><img src="https://counter.theconversation.com/content/54421/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sophie Rosenberg receives funding from the Gates Cambridge Scholarship. </span></em></p>How can the International Criminal Court serve justice in a climate of intense rumour and bitter suspicion?Sophie Rosenberg, PhD Candidate in International Studies, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/396032015-04-01T14:49:07Z2015-04-01T14:49:07ZWhy Palestine joining the International Criminal Court could be a total game changer<p>After more than five years and much diplomatic wrangling, Palestine has <a href="http://news.yahoo.com/palestinians-join-icc-israelis-sights-212707578.html">joined the</a> International Criminal Court (ICC). Now, the prospect of Israel being held accountable for war crimes has greatly increased, and that will have significant repercussions for the peace process and for Palestinian statehood.</p>
<p>ICC prosecutor Fatou Bensouda opened a preliminary investigation on January 16. This can investigate everything that has happened in Palestinian territories since June 13 2014 – the date that Palestine formally accepted ICC jurisdiction. This is also the date when Israel broke a ceasefire with Hamas leading to Operation Protective Edge, which raged throughout the summer of 2014, leading to the deaths of at least 1,473 civilians in Gaza and bringing widespread international condemnation against Israeli actions.</p>
<p>The story dates back to 2009, when the Palestinian Authority requested that the ICC investigate Israel over <a href="https://www.amnesty.org/download/Documents/48000/mde150152009en.pdf">Operation Cast Lead</a>, but was rejected for not being a state. It was rejected for full membership in the United Nations in 2011, but was granted the status of non-member observer state the following year. </p>
<p>Palestine then joined numerous international organisations, such as UNESCO, and while the question of its statehood remains <a href="http://www.asil.org/insights/volume/19/issue/6/icc-and-palestinian-consent">controversial</a>, it has <a href="http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1082_2.aspx">now been allowed</a> to join the ICC. In the interim it has periodically indicated it would refer Israel to the ICC, but was held back by pressure from the <a href="http://www.theguardian.com/commentisfree/2014/aug/01/gaza-international-law-war-crimes-security-council">US, the UK and France</a> – and because using the threat suited Palestinian political interests. </p>
<h2>Avenues of enquiry</h2>
<p>The prosecutor could investigate the civilian casualties in Operation Protective Edge. She could also investigate whether the Israelis carried out the war crime known as <a href="http://www.crimesofwar.org/a-z-guide/collective-punishment/">collective punishment</a>. This includes demolishing the homes of suspected Hamas militants, thus rendering their families homeless, as well as killing civilians in these buildings. During Operation Protective Edge alone, Amnesty International reported that “more than 18,000 homes were destroyed or damaged beyond repair”. </p>
<p>The prosecutor would also be likely to investigate Palestinians over the hundreds of rockets Hamas fired indiscriminately into Israel from Gaza, <a href="https://www.amnesty.org/en/articles/news/2015/03/palestinian-armed-groups-killed-civilians-on-both-sides-in-2014-gaza-conflict/">which resulted in</a> the deaths of at least six civilians. </p>
<p>Most substantially, Bensouda could look at the <a href="http://www.israeli-occupation.org">continued occupation of Palestinian territory</a>, including both the West Bank and Gaza. Specifically this might look at Israel’s <a href="https://www.globalpolicy.org/security-council/index-of-countries-on-the-security-council-agenda/israel-palestine-and-the-occupied-territories/land-and-settlement-issues.html">settlement policy</a>, which appears to contravene Article 8 of the ICC’s founding <a href="http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">Rome Statute</a>. </p>
<p>The ICC’s power in this situation is somewhat weakened by the fact that Israel is not a signatory to the ICC, but still significant. Bensouda could issue arrest warrants for individual Israelis, who could then be arrested if they travelled to one of the 123 signatory countries. Any finding would also be a powerful condemnation of Israeli policy that could severely damage the country’s international standing. </p>
<p>A big issue would be identifying those most responsible for relevant actions against Palestinians. This could very well include Israel’s prime minister, Benjamin Netanyahu, and his predecessors – as well as other senior government officials and military commanders. </p>
<p>In theory <a href="https://justicehub.org/article/why-icc-wont-prosecute-museveni">there are precedents</a> that would enable Bensouda to decide not to investigate Hamas on the grounds that the actions by the Israelis were much more serious. But in practice the intense international scrutiny would likely put extra pressure on the prosecutor to be completely evenhanded. </p>
<h2>Consequences</h2>
<p>The implications of any investigation are extremely unpredictable – particularly following the recent <a href="http://www.cnn.com/2015/03/18/middleeast/israel-election/">Israeli election</a>, where Netanyahu <a href="http://www.theguardian.com/world/2015/mar/16/israel-election-netanyahu-losing-opinion-polls-as-voting-begins">stated that</a> there would be no Palestinian state while he is in power (he has since tried to move away from this statement, but few believe this reversal).</p>
<p>One prospect is sanctions against the Palestinians. Israel has already retaliated for Palestine joining the ICC by <a href="http://news.nationalpost.com/news/the-palestinian-authority-could-collapse-if-israel-continues-to-withhold-100m-in-monthly-taxes-officials-say/#__federated=1">refusing to</a> transfer to the Palestinian Authority more than $100m (£68m) per month it collects in taxes (it has since partially backpedalled). And despite the fact that the US is not a party to the ICC either, Congress <a href="http://www.lawfareblog.com/2015/02/does-the-palestinian-turn-to-the-icc-mandate-a-cut-off-in-economic-assistance/">has passed a law</a> as a concession to the pro-Israel lobby mandating that all economic assistance to the Palestinian Authority be cut off once it joins the ICC.</p>
<p>Such sanctions could cause the Palestinian Authority to collapse, doing even more harm to the peace process. This would further destabilise an unstable situation and potentially further radicalise Palestinians, while expanding global sympathy for the nation.</p>
<p>A second possibility is that an investigation deters Israelis and Palestinians from further armed conflict, but this is unlikely while Israel’s policy continues to be based on its oft-proclaimed right to protect its security and continues to see settlements as key to its continued existence. And legal challenges from a court which Israel doesn’t recognise are not going to change those policies overnight. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/76621/original/image-20150331-1253-1rrtege.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/76621/original/image-20150331-1253-1rrtege.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/76621/original/image-20150331-1253-1rrtege.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/76621/original/image-20150331-1253-1rrtege.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/76621/original/image-20150331-1253-1rrtege.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/76621/original/image-20150331-1253-1rrtege.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=487&fit=crop&dpr=1 754w, https://images.theconversation.com/files/76621/original/image-20150331-1253-1rrtege.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=487&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/76621/original/image-20150331-1253-1rrtege.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=487&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Benjamin Netanyahu: not for turning.</span>
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<p>Given <a href="http://www.ynetnews.com/articles/0,7340,L-4639472,00.html">Obama’s comments</a> after the Israeli election there is widespread speculation that Israel may have to reckon without continuing US diplomatic cover in the UN Security Council, which might might reduce the prospect of the US attempting to get a resolution through the UN Security Council to suspend the investigation. </p>
<p>But Hamas is unlikely to be deterred by the threat of the ICC either. The conflict goes too much to the heart of Palestine’s existence – and we have seen that Hamas is willing to endure much more severe punishment from Israel to pursue its goals. </p>
<p>A third possibility is that the peace process revives. Many will not want it to collapse entirely, including the US – which may be prepared to reverse its opposition to a Security Council resolution calling for the occupation to end and the creation of a Palestinian state. The Obama administration <a href="http://www.ynetnews.com/articles/0,7340,L-4639472,00.html">has recently</a> reiterated its public backing for a two-state solution, after all. The <em>quid pro quo</em> would likely be that ICC proceedings be suspended.</p>
<p>Of course, such a move by the Obama administration would likely be resisted by both hardline Israeli politicians and many members of Congress. Russia, in particular, could also decide to veto a suspension through the Security Council at some point. Even if the Israelis did reach a peace agreement, the threat of prosecution in The Hague would always remain. </p>
<h2>From despair to where?</h2>
<p>Palestine joining the ICC has further complicated the situation in the region over and above the <a href="http://www.cnn.com/2015/03/18/middleeast/israel-election/">Netanyahu election victory</a>. And even if peace broke out in lieu of an investigation, it could have negative consequences. It could make the ICC seem merely a tool to make warring parties lay down arms, which could badly damage its legitimacy. It would keep in power those who committed atrocities on both sides, raising the possibility that they could be spoilers as the peace is implemented. </p>
<p>Meanwhile those most affected would likely be left feeling they had received no justice. Some people on both sides might only feel able to embrace reconciliation after seeing wrongdoers punished. They might rightly ask whether this is the best result that decades of development of human rights norms and mechanisms can deliver.</p><img src="https://counter.theconversation.com/content/39603/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kurt Mills has received funding from the British Academy, Carnegie Trust for the Universities of Scotland, and Research Councils UK, but this article reflects his own views.</span></em></p>With the peace process derailed and the incoming Netanyahu administration promising zero tolerance to Palestine, joining the ICC sets a major cat among the pigeons.Kurt Mills, Senior Lecturer in International Human Rights, University of GlasgowLicensed as Creative Commons – attribution, no derivatives.