tag:theconversation.com,2011:/ca/topics/the-hague-8270/articlesThe Hague – The Conversation2023-06-12T14:51:41Ztag:theconversation.com,2011:article/2074232023-06-12T14:51:41Z2023-06-12T14:51:41ZRwanda genocide accused Félicien Kabuga is ruled unfit to stand trial: this will further erode trust in international justice<figure><img src="https://images.theconversation.com/files/531219/original/file-20230610-107201-wj7ibu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Simon Wohlfahrt/AFP via Getty Images</span></span></figcaption></figure><p><em>The International Residual Mechanism for Criminal Tribunals recently <a href="https://www.bbc.co.uk/news/world-africa-65826274">concluded</a> a two-year court hearing on Félicien Kabuga. Kabuga is accused of crimes against humanity during the Genocide against the Tutsi in Rwanda in 1994. The court ruled that he was <a href="https://edition.cnn.com/2023/06/07/africa/felicien-kabuga-trial-incapable-intl/index.html">not mentally fit for trial</a>.</em> </p>
<p><em>The court proposed that the tribunal judges find an “alternative procedure that resembles a trial as closely as possible, but without the possibility of a conviction”. What this “alternative procedure” will look like is still not fully known. Rwanda’s ambassador to the Netherlands, Olivier Nduhungirehe, <a href="https://twitter.com/onduhungirehe/status/1666435782435905538">has suggested</a> a court case would still occur, but without Kabuga. Questions will be raised about how this falls within international legal procedures. Jonathan Beloff, who has <a href="https://www.kcl.ac.uk/people/jonathan-r-beloff-phd">researched post-genocide Rwanda</a>, explores the implications of the tribunal’s decision for genocide victims.</em></p>
<h2>Who is Félicien Kabuga?</h2>
<p>Kabuga, who <a href="https://www.reuters.com/article/us-france-rwanda-kabuga-idUSKBN22W1L9">claims to be 90</a>, was a <a href="https://www.theeastafrican.co.ke/rwanda/News/The-humble-social-man-who-grew-to-be-rich-and-influential-/1433218-1459342-91ulchz/index.html">successful businessman</a> before and during the 1994 Genocide against the Tutsi. </p>
<p>He gained considerable wealth from tea production during the presidency of Juvénal Habyarimana between 1973 and 1994. </p>
<p>In 1997, Kabuga was accused by the <a href="https://www.irmct.org/en/cases/mict-13-38">International Criminal Tribunal for Rwanda</a> of seven criminal charges. These included providing funds to <a href="https://www.ktpress.rw/2022/11/ex-militia-says-felicien-kabuga-supplied-ak47-rifles-to-commit-genocide/">import weapons</a> used to <a href="https://www.bbc.com/news/world-africa-26875506">kill an estimated 800,000 Tutsis and moderate Hutus</a> over 100 days in 1994.</p>
<p>He was also accused of <a href="https://www.irmct.org/en/cases/mict-13-38">funding</a> a <a href="https://www.researchgate.net/publication/354894105_The_Role_of_Radio-Television_Libre_Des_Mille_Collines_in_The_Rwandan_Genocide_An_Analysis_From_The_Theoretical_Perspectives_of_Intergroup_Threat_and_Aggression">radio station</a> that broadcasted anti-Tutsi messages. </p>
<p>Kabuga fled Rwanda during the Rwandan Patriotic Front’s <a href="https://www.hrw.org/reports/1999/rwanda/Geno15-8-03.htm#:%7E:text=The%20Rwandan%20Patriotic%20Front%20ended,April%20and%20ended%20in%20July.">operation</a> to end the genocide.</p>
<p>He was named among <a href="https://unictr.irmct.org/en/tribunal">93 suspected leaders</a> of the genocide by the International Criminal Tribunal for Rwanda. However, he remained in hiding in <a href="https://www.aljazeera.com/features/2020/5/24/the-risky-business-of-tracking-rwandan-fugitive-felicien-kabuga">Kenya</a>, <a href="https://twitter.com/lindamelvern/status/1666390119203450880">Switzerland</a> and later France. </p>
<p>In May 2020, <a href="https://www.reuters.com/article/us-france-rwanda-kabuga/rwandan-genocide-fugitive-kabuga-due-before-french-court-idUSKBN22V1FY">French authorities arrested him at his Paris home</a>. Kabuga has, however, <a href="https://www.dw.com/en/rwandan-felicien-kabuga-calls-genocide-charges-lies/a-53590828">denied</a> the charges against him. </p>
<h2>What happened after his arrest in France?</h2>
<p>The International Residual Mechanism for Criminal Tribunals at The Hague gained custody of Kabuga shortly after his arrest. His alleged crimes fell under its jurisdiction. The Hague-based court took over from the International Criminal Tribunal for Rwanda, whose mandate ended <a href="https://unictr.irmct.org/en/tribunal">in 2012</a>. </p>
<p>Prosecution in Rwanda was never a realistic option – Kabuga was wanted by an international court, which holds legal precedence over Rwanda’s judicial demands.</p>
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Read more:
<a href="https://theconversation.com/rwandans-will-want-felicien-kabuga-tried-at-home-why-this-wont-happen-139010">Rwandans will want Félicien Kabuga tried at home. Why this won't happen</a>
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<p>Additionally, international human rights groups, such as <a href="https://www.hrw.org/report/2008/07/25/law-and-reality/progress-judicial-reform-rwanda">Human Rights Watch</a> and <a href="https://www.amnesty.org/en/documents/afr47/013/2007/en/">Amnesty International</a>, have questioned the credibility of Rwanda’s judicial system, often claiming unfair practices and political interference. This has affected the Rwandan government in extradition applications for other genocide perpetrators. Nevertheless, Rwanda’s National Public Prosecution Authority committed to assisting the international tribunal in Kabuga’s prosecution.</p>
<p>The central focus of Kabuga’s case at the tribunal was his ability to participate in the hearings meaningfully. By the <a href="https://apnews.com/article/rwanda-genocide-kabuga-trial-dementia-f49f92513ef7f6ecbdefb993e4a86e23">time of his arrest</a>, he had suffered physical deterioration from old age and <a href="https://www.alz.org/alzheimers-dementia/what-is-dementia">dementia</a>. Dementia covers a range of conditions that include a loss of memory, problem-solving and language skills.</p>
<p>Kabuga’s lawyers argued that he was unfit for trial because of these medical conditions. Since his arrest, he has been held by The Hague-based court. </p>
<p>Rwandan genocide survivor organisations, such as Ibuka, have <a href="https://www.justiceinfo.net/en/113158-kabuga-trial-for-rwandans-the-old-man-is-still-hiding.html">previously protested</a> against any hindrance to what they perceive as necessary justice. But Kabuga’s lawyers’ arguments on their client’s mental well-being convinced the judges. </p>
<h2>What are the implications of this judgement for Rwandans?</h2>
<p>The recent court decision on Kabuga’s inability to fruitfully participate in any trial reinforces what <a href="https://www.newtimes.co.rw/article/8129/news/crime/un-court-decision-on-kabuga-trial-disappointing---activists">some Rwandans expected as a failure of the international system and justice</a>. </p>
<p>Shortly after his arrest, some Rwandans <a href="https://www.aljazeera.com/opinions/2020/6/2/who-should-try-rwandan-genocide-suspect-felicien-kabuga">expressed scepticism</a> about Kabuga’s trial that would be in Europe rather than Kigali. They say those suspected of participating in <a href="https://survivors-fund.org.uk/news/cnlg-and-ibuka-call-out-uk-judiciary/">Rwanda’s genocide must be prosecuted in the country</a> where the crime occurred. As the Ibuka executive secretary <a href="https://survivors-fund.org.uk/news/cnlg-and-ibuka-call-out-uk-judiciary/">once put it</a>:</p>
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<p>Rwanda has all it requires to deliver standard justice. </p>
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<p>Some Rwandans have also <a href="https://www.jstor.org/stable/26893864?seq=1">questioned</a> the effectiveness of the International Criminal Tribunal for Rwanda, <a href="https://www.france24.com/en/africa/20200528-debate-who-is-f%C3%A9licien-kabuga-rwandan-genocide-kingpin-arrested-in-france">claiming</a> it sought to make up for the international community’s inaction during the genocide rather than provide justice for the victims.</p>
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Read more:
<a href="https://theconversation.com/rusesabagina-vs-rwanda-how-kagame-wields-soft-power-to-get-his-way-with-the-west-202963">Rusesabagina vs Rwanda: how Kagame wields soft power to get his way with the west</a>
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<p>This tribunal cost nearly <a href="https://unictr.irmct.org/en/tribunal">US$1 billion</a>, and convicted 61 out of 93 Rwandan perpetrators from 1995 to 2012. In contrast, Rwanda’s domestic judicial and reconciliation system, <a href="https://www.africaresearchinstitute.org/newsite/publications/how-rwanda-judged-its-genocide-new/">gacaca</a>, prosecuted an estimated one million people for various crimes and offences during the genocide at a <a href="https://onlinelibrary.wiley.com/doi/10.1111/dpr.12281#:%7E:text=Clark%20notes%20that%20the%20Gacaca,%2C%20%26%20Gasanabo%2C%202016">much lower cost</a> between 2002 and 2012. <a href="https://www.britannica.com/event/Rwanda-genocide-of-1994/Aftermath#ref1111323">Gacaca courts</a> were presided over by local leaders. They gave the accused opportunities to admit guilt and reconcile with victims. </p>
<p>This latest international court ruling on Kabuga will <a href="https://www.voanews.com/a/rwanda-challenges-icc-role-as-court-marks-fifteen-years/1703692.html">reinforce the belief</a> that the international community has abandoned Rwandans who seek meaningful justice. The decision, particularly in light of the fact that <a href="https://www.newtimes.co.rw/article/6482/news/kwibuka/29-years-after-genocide-over-1000-suspects-still-at-large">genocide suspects are still at large in other countries</a>, is likely to erode Rwandan trust in international courts’ capabilities to properly prosecute suspects and deliver justice.</p><img src="https://counter.theconversation.com/content/207423/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Beloff receives funding from the Arts and Humanities Research Council.</span></em></p>Kabuga’s release raises questions about the international community’s commitment to delivering justice for genocide victims.Jonathan Beloff, Postdoctoral Research Associate, King's College LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1797372022-03-29T12:36:45Z2022-03-29T12:36:45ZCalling Putin a ‘war criminal’ could spark even more atrocities in Ukraine<figure><img src="https://images.theconversation.com/files/453873/original/file-20220323-17-130h5u7.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3196%2C1911&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Vladimir Putin celebrated Russia's annexation of Crimea on March 18, 2022, the eighth anniversary of the move.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/russian-president-vladimir-putin-attends-a-concert-marking-news-photo/1239295205">Mikhail Klimentyev/Sputnik/AFP via Getty Images</a></span></figcaption></figure><p>As the war in Ukraine continues, officials in the U.S. and <a href="https://www.pbs.org/newshour/world/european-union-accuse-russia-of-war-crimes-in-ukraine-but-unlikely-to-impose-new-sanctions">Europe</a> are sounding alarms about <a href="https://www.aljazeera.com/news/2022/3/17/explainer-who-is-a-war-criminal">alleged war crimes</a> being committed by Russian troops there. U.S. President Joe Biden has called Russian President Vladimir Putin a “<a href="https://www.cnn.com/2022/03/16/politics/biden-calls-putin-a-war-criminal/index.html">war criminal</a>,” as <a href="https://www.reuters.com/world/us/us-senate-unanimously-condemns-putin-war-criminal-2022-03-15/">has the U.S. Senate</a>, on the grounds that <a href="https://www.msn.com/en-us/news/world/us-finds-russian-troops-have-committed-war-crimes-in-ukraine/ar-AAVqb1Z">schools, hospitals and civilian shelters</a> appear to have been deliberately targeted by Russian forces. </p>
<p>If Putin is formally accused of war crimes, there are three kinds of courts that might call him to answer for them. <a href="https://scholar.google.com/citations?user=DV5ECYgAAAAJ&hl=en&oi=ao">We</a> <a href="https://scholar.google.com/citations?hl=en&user=1-C0q3IAAAAJ">are</a> scholars of dictators and conduct research on <a href="https://doi.org/10.1093/acprof:oso/9780198746997.001.0001">how they are held accountable</a> for their actions. None of the available methods are likely to punish Putin any time soon, and they may even lead to more potential war crimes.</p>
<h2>International Court of Justice</h2>
<p>The International Court of Justice was established in 1945 as part of the United Nations system. The court can settle disputes only between <a href="https://www.justia.com/international-law/the-international-court-of-justice/">countries that voluntarily ask for its rulings</a>. It cannot criminally prosecute individuals, much less people who do not consent to its jurisdiction. </p>
<p>Further, the court has no real <a href="https://theconversation.com/the-international-court-of-justice-has-ordered-russia-to-stop-the-war-what-does-this-ruling-mean-179466">enforcement power</a>. National leaders can safely ignore its judgments, though their <a href="https://theconversation.com/the-international-court-of-justice-has-ordered-russia-to-stop-the-war-what-does-this-ruling-mean-179466">reputations may suffer</a> and doing so may lead to further isolation. </p>
<h2>Special international tribunals</h2>
<p>In the past, <a href="https://www.cnn.com/2022/03/03/politics/putin-war-crimes-russia-ukraine-us-what-matters/index.html">world leaders accused of atrocities</a> – like Liberia’s <a href="https://www.aljazeera.com/opinions/2012/4/27/charles-taylor-trial-highlights-icc-concerns">Charles Taylor</a> and Serbia’s <a href="https://www.icty.org/en/case/slobodan_milosevic">Slobodan Milosevic</a> – have stood trial before special courts created by the U.N. to deal with crimes committed during particular conflicts. These courts, however, were created only after the alleged crimes had already been committed.</p>
<h2>International Criminal Court</h2>
<p>Created in 2002, the International Criminal Court can <a href="https://www.icc-cpi.int/resource-library/documents/uicceng.pdf">prosecute individuals</a> responsible for genocide, crimes against humanity, war crimes and aggression. It was created, in part, to avoid the need for ad hoc specialized tribunals for each successive conflict. The idea was that the existence of a permanent court would <a href="https://doi.org/10.1017/S0020818316000114">deter leaders from committing grave violations</a> of international law.</p>
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<span class="caption">Ukrainian citizens’ apartment buildings have been damaged by the Russian attack.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXRussiaUkraineWar/55c58716865e48e0bde6395658bf2f75/photo">AP Photo/Vadim Ghirda</a></span>
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<h2>Some opportunity for accountability</h2>
<p>Through these three systems, the international community has sought to hold world leaders responsible for their atrocities. But it can be incredibly difficult and time-consuming.</p>
<p>In 1999, Milosevic became the <a href="http://edition.cnn.com/WORLD/europe/9905/27/kosovo.milosevic.04/">first sitting head of state</a> to be charged with war crimes by an international tribunal, the International Criminal Tribunal for the former Yugoslavia. He was indicted for crimes committed during the Kosovo war from 1998 to 1999. But he was arrested only after he was ousted from power in 2000. </p>
<p>Even then, his extradition from Serbia was difficult because he sued to block it, and his successor as Serbia’s president, Vojislav Kostunica, and the Yugoslavian Constitutional Court <a href="https://www.washingtonpost.com/archive/politics/2001/06/29/serb-leaders-hand-over-milosevic-for-trial-by-war-crimes-tribunal/a209e0ed-e7d5-428e-a462-d0999d29961c/">refused to send him out of the country to stand trial</a>. Kostunica wanted to win over Serbian voters who were sympathetic to Milosevic.</p>
<p>In the end, <a href="https://www.nytimes.com/2001/03/10/world/us-makes-arrest-of-milosevic-a-condition-of-aid-to-belgrade.html">U.S. pressure</a> led to a trial in 2002. But <a href="https://www.theguardian.com/world/2006/mar/11/warcrimes">Milosevic died</a> in 2006 before the court could issue a sentence.</p>
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<span class="caption">Slobodan Milosevic gestures during his 2002 trial before the International Criminal Court.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/WarCrimesTribunal/68ad2f1579dc4ddc96587d48773c8584/photo">ICTY via AP</a></span>
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<h2>Not effective deterrents or punishments</h2>
<p>None of these three tools is likely to have much, if any, effect on Putin’s choices in Ukraine.</p>
<p>The International Court of Justice has <a href="https://news.un.org/en/story/2022/03/1114052">declared Russia’s invasion of Ukraine unjustified</a> and has urged an immediate halt to Russian military operations there. But it has said nothing about Putin because the court looks at the actions of states, not specific people – not even national leaders. And one day after the court’s announcement, the Kremlin <a href="https://www.euractiv.com/section/europe-s-east/news/russia-rejects-international-court-ruling-to-stop-invasion-of-ukraine/">rejected it</a>.</p>
<p>The existence of the International Criminal Court was meant to relieve the need for special tribunals. However, Russia – <a href="http://news.bbc.co.uk/2/hi/1970312.stm">like the U.S.</a> – is <a href="https://www.ejiltalk.org/russias-withdrawal-of-signature-from-the-rome-statute-would-not-shield-its-nationals-from-potential-prosecution-at-the-icc/">not a member of the court</a> and claims the court has no jurisdiction over Russia or its officials.</p>
<p>In addition, Russia is a permanent member of the U.N. Security Council, so it can block that body’s referrals to the International Criminal Court.</p>
<p>The possibility of prosecution did not deter Putin when his security forces allegedly committed crimes in <a href="https://www.hrw.org/news/2000/02/29/war-crimes-chechnya-and-response-west">Chechnya</a> in the 1990s and <a href="https://www.jstor.org/stable/23639898?seq=1">Georgia</a> in 2008, such as indiscriminate and disproportionate bombing of civilian targets.</p>
<p>Ukraine is also <a href="https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx#U">not a member of the court</a>. But in 2015 the International Criminal Court and the Ukrainian government agreed that the court could <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1146">begin an investigation</a> into alleged crimes committed by Russian-backed groups in Crimea and eastern Ukraine since February 2014, when Russia first <a href="https://www.vox.com/2014/8/15/6006281/russia-ukraine-war-what-we-know">invaded</a> that region and <a href="https://www.nytimes.com/2014/03/19/world/europe/ukraine.html">annexed Crimea</a>.</p>
<p>On March 3, 2022, the <a href="https://www.theguardian.com/world/2022/mar/03/icc-launches-war-crimes-investigation-russia-invasion-ukraine">court launched another investigation</a> into war crimes by Russian soldiers and their commanders elsewhere in Ukraine. Since then, <a href="https://edition.cnn.com/2022/03/15/europe/ukraine-mariupol-destruction-footage-intl/index.html">Russian attacks on civilians</a> in Ukraine have intensified.</p>
<p>It’s <a href="https://theconversation.com/putin-puts-international-justice-on-trial-betting-that-the-age-of-impunity-will-continue-178836">not clear whether Putin</a> might eventually be indicted by the International Criminal Court. But if he is, the chief obstacle to prosecuting him will be bringing him before the court for trial. The court <a href="https://accessaccountability.org/index.php/2019/09/26/criticisms-and-shortcomings-of-the-icc/">depends on member nations</a> to arrest the accused and transfer them to The Hague for trial. If Putin stays in power, that will most likely never happen.</p>
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<a href="https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man's body lies amid rubble in Kyiv, Ukraine." src="https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A man’s body lies amid rubble in Kyiv, Ukraine.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/dead-body-of-an-old-man-lying-on-the-sidewalk-in-the-rubble-news-photo/1239192887">Mykhaylo Palinchak/SOPA Images/LightRocket via Getty Images</a></span>
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<h2>International justice may backfire</h2>
<p>It is also possible that international efforts seeking to <a href="https://chicagounbound.uchicago.edu/uclrev/vol70/iss1/7/">hold leaders responsible</a> for human rights crimes <a href="https://www.jstor.org/stable/4137476">could backfire</a>. </p>
<p>Leaders who face the prospect of punishment once a conflict ends have an incentive to <a href="https://www.cornellpress.cornell.edu/book/9781501750212/the-justice-dilemma/#bookTabs=1">prolong the fighting</a>. And a leader who presides over atrocities has a strong incentive to <a href="https://doi.org/10.1017/S0020818314000484">avoid leaving office</a>, even if that means using increasingly brutal methods – and committing more atrocities – to remain in power. </p>
<p>When losing power is costly, leaders may be more likely to fight to the death, as Libyan dictator <a href="https://www.theguardian.com/world/2014/oct/28/muammar-gaddafi-death-impact-libya">Moammar Gadhafi</a> did after the ICC issued arrest warrants for him and other close relatives in 2011.</p>
<p>[<em><a href="https://memberservices.theconversation.com/newsletters/?nl=politics&source=inline-politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p>
<p>In contrast, when <a href="https://www.cambridge.org/core/journals/international-organization/article/abs/human-rights-prosecutions-and-autocratic-survival/F54745E360BC9C9261A4B5ABC769A219">losing power</a> comes with <a href="https://doi.org/10.1177/106591298203500407">credible</a> <a href="https://doi.org/10.1177/0022002795039001005">domestic immunity from prosecution</a> for ex-rulers, international justice campaigns may <a href="https://www.cambridge.org/core/books/power-of-human-rights/3E62C6D43DE50B0F6179C2BD2B3D3EBB">help mobilize domestic opposition</a> to dictators. That can boost the chances of a peaceful transition from authoritarian rule – as was the case in some <a href="https://doi.org/10.1111/1468-2478.00083">South American</a> countries in the 1980s. However, the flip side of domestic immunity is that ex-rulers are not held accountable. </p>
<h2>Justice for Putin?</h2>
<p>An International Criminal Court indictment of Putin, or even an investigation, might backfire because of how he rules Russia. His style of government is called a “<a href="https://www.foreignaffairs.com/articles/2016-09-26/new-dictators">personalist dictatorship</a>,” in which power is <a href="https://global.oup.com/academic/product/the-new-kremlinology-9780192896193?cc=us&lang=en&">centralized in the leader</a> and a <a href="https://www.newyorker.com/news/daily-comment/putins-historic-miscalculation-may-make-him-a-war-criminal">small core of close associates</a>, rather than in a <a href="https://www.cambridge.org/core/books/how-dictatorships-work/8DC095F7A890035729BB0BB611738497">supporting political party or the military</a>. </p>
<p>Our <a href="https://doi.org/10.1080/13510347.2013.738866">research</a> <a href="https://global.oup.com/academic/product/foreign-pressure-and-the-politics-of-autocratic-survival-9780198746997?cc=es&lang=en&">shows</a> that personalist rulers are more likely than other leaders to be violently ousted from power. That increases the chances they will be punished after losing power. Strongmen typically undermine the political institutions, such as a cohesive military or strong political party, through which they or their allies could retain influence after stepping down. Unable to protect themselves at home, deposed personalist dictators often seek protection in exile.</p>
<p>However, a potential International Criminal Court prosecution makes it less likely any nation will <a href="https://doi.org/10.1086/688225">promise to protect Putin in exile</a> – so <a href="https://doi.org/10.1111/ajps.12352">that method of ending the conflict</a> may now be off the table – providing Putin with further incentives to tighten his grip on power. </p>
<p>If Putin wants to avoid consequences for his actions, his most likely approach is to prolong the conflict, strive for victory – even a limited one – and ramp up political repression at home.</p><img src="https://counter.theconversation.com/content/179737/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joseph Wright has received funding from the U.S. National Science Foundation and the Minerva Research Initiative of the U.S. Department of Defense. </span></em></p><p class="fine-print"><em><span>Abel Escribà-Folch does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>None of the available methods for holding Russian President Vladimir Putin accountable are likely to actually punish him, and they may even make new atrocities more likely.Joseph Wright, Professor of Political Science, Penn StateAbel Escribà-Folch, Associate Professor of Political and Social Sciences, Universitat Pompeu FabraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1438862020-09-02T12:21:00Z2020-09-02T12:21:00ZUS punishes International Criminal Court for investigating potential war crimes in Afghanistan<figure><img src="https://images.theconversation.com/files/355651/original/file-20200831-20-j57822.jpg?ixlib=rb-1.1.0&rect=0%2C4%2C3000%2C1989&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Two detainees at Guantanamo are among those who told ICC investigators they were tortured at CIA 'black sites' in Afghanistan in 2003 and 2004.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/navy-sailor-walks-along-a-fence-at-a-camp-for-detainees-at-news-photo/92477311?adppopup=true">ohn Moore/Getty Images</a></span></figcaption></figure><p>The Trump administration has sought to weaken or abandon various international agencies since 2016. Now it’s taking aim at <a href="https://www.euronews.com/2020/07/02/donald-trump-s-attack-on-the-icc-shows-his-contempt-for-the-global-rule-of-law-view">the International Criminal Court</a>, a <a href="https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf">global tribunal</a> that investigates and prosecutes war crimes, torture and genocide.</p>
<p>Claiming the ICC’s investigation into alleged war crimes by U.S. forces in Afghanistan poses a national security threat, President Donald Trump issued an <a href="https://www.federalregister.gov/documents/2020/06/15/2020-12953/blocking-property-of-certain-persons-associated-with-the-international-criminal-court">executive order</a> on June 11 effectively criminalizing anyone who works at the ICC. Its lawyers, judges, human rights researchers and staff could now have their U.S. bank accounts frozen, U.S. visas revoked and travel to the U.S. denied. </p>
<p>On Sept. 2, Sec. State Mike Pompeo announced the new sanctions would be applied for the first time, <a href="https://thehill.com/video/administration/514743-watch-live-sec-pompeo-holds-press-briefing">against ICC special prosecutor Fatou Bensouda and her top aide</a>. </p>
<p>The executive order does not target U.S. citizens. But Americans can be sanctioned if they “materially support” the ICC by, say, filing an amicus brief to support a case. Such language usually applies to foreign terrorist organizations and their enablers – not human rights lawyers. </p>
<p>The retired Gen. Wesley Clark called Trump’s order <a href="https://foreignpolicy.com/2020/07/02/the-united-states-has-nothing-to-fear-from-the-icc/">a “tragic mistake” in foreign policy</a>. He says the U.S. “has nothing to fear from the ICC,” which exists to deter and punish the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.2_Charter%20of%20IMT%201945.pdf">kinds of atrocities committed by Germany and Japan during World War II</a>.</p>
<p>I am an <a href="https://www.bu.edu/law/profile/susan-m-akram/">international human rights lawyer</a> who has defended and advocated for victims of gross human rights violations in American courts and at the United Nations. For these people, the ICC is the only real means to hold their persecutors accountable, even if few of them will ever set foot in the court. </p>
<figure class="align-center ">
<img alt="Pompeo, standing at the podium, speaks to seated reporters in the White House Press Briefing Room" src="https://images.theconversation.com/files/355648/original/file-20200831-18-1tm241n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355648/original/file-20200831-18-1tm241n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355648/original/file-20200831-18-1tm241n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355648/original/file-20200831-18-1tm241n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355648/original/file-20200831-18-1tm241n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355648/original/file-20200831-18-1tm241n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355648/original/file-20200831-18-1tm241n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">U.S. Secretary of State Mike Pompeo called the ICC’s pending probe into U.S. officials in Afghanistan ‘reckless,’ March 5, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/secretary-of-state-mike-pompeo-delivers-remarks-to-the-news-photo/1205295044?adppopup=true">Eric Baradat/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Brief history of the ICC</h2>
<p>The ICC is the only criminal court with near global jurisdiction. </p>
<p>Since its founding in 2002 in The Hague, it has successfully prosecuted over 40 high-ranking politicians, warlords and heads of state for genocide, war crimes and crimes against humanity. Those imprisoned include <a href="https://www.icc-cpi.int/drc/lubanga">Thomas Lubanga</a>, a warlord who recruited child soldiers and forced them to fight in the Democratic Republic of the Congo, and <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1494">Bosco Ntaganda</a>, convicted of rape, murder and sexual slavery in the same conflict. </p>
<p>The ICC also issues warrants for the arrests of leaders who’ve fled the court’s justice, such as Sudan’s Omar al-Bashir, who stands charged with genocide for the rape, killing and torture of civilians in Darfur. Fugitive suspects are prosecuted by the ICC if and when they are extradited to The Hague.</p>
<figure class="align-center ">
<img alt="Protesters hold sings saying al-Bashir is 'wanted'" src="https://images.theconversation.com/files/355649/original/file-20200831-23-1t5akwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355649/original/file-20200831-23-1t5akwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355649/original/file-20200831-23-1t5akwo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355649/original/file-20200831-23-1t5akwo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355649/original/file-20200831-23-1t5akwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355649/original/file-20200831-23-1t5akwo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355649/original/file-20200831-23-1t5akwo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sudanese demanding al-Bashir stand trial at The Hague, Feb. 15, 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protesters-are-seen-holding-placards-during-the-news-photo/1125062463?adppopup=true">Ana Fernandez/SOPA Images/LightRocket via Getty Images</a></span>
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<p>Occasionally, special war tribunals are established outside the ICC to prosecute specific cases in specific countries. Recently, a special international tribunal <a href="https://www.bbc.com/news/world-middle-east-53601710">convicted a Hezbollah member</a> for the 2005 assassination of Lebanese prime minister Rafik Hariri. </p>
<p>Together, the ICC and these complementary special tribunals enforce international human rights law. The ICC is <a href="https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf">a court of last resort</a>. It acts only when national governments cannot or will not investigate and prosecute war crimes. Its jurisdiction is intentionally narrow. It means countries with a strong rule of law need not fear international investigation.</p>
<h2>US fearful of international justice</h2>
<p>In the early 1990s, the U.S. was deeply involved in United Nations negotiations in the Rome Statute, the treaty that created the ICC. But in 1998 President Bill Clinton decided not to ask Congress to <a href="https://treaties.un.org/Pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=XVIII-10&chapter=18&lang=en">ratify the Rome Statute</a>, claiming there was no protection against “politicized prosecutions.” </p>
<p>Despite not being one of the court’s 123 member countries, the U.S. has often facilitated the ICC’s work. Successive U.S. administrations have imposed a series of <a href="https://www.treasury.gov/resource-center/sanctions/programs/pages/syria.aspx">sanctions</a> against people under ICC investigation, including members of <a href="https://www.cnn.com/2020/06/17/middleeast/syria-caesar-act-us-sanctions-economy-intl/index.html">the Assad regime</a> suspected of committing <a href="https://www.internationalaffairs.org.au/australianoutlook/justice-syria-international-criminal-court/">war crimes in Syria</a>. </p>
<p>The U.S. has also championed the ICC’s ongoing examination of crimes committed by the Taliban in Afghanistan and its <a href="https://theconversation.com/preventing-genocide-in-myanmar-court-order-tries-to-protect-rohingya-muslims-where-politics-has-failed-130530">investigation of Myanmar</a> for possible genocide against the Rohingya Muslims. The U.S. also got involved in the hunt for the <a href="https://www.nytimes.com/2017/05/15/world/africa/joseph-kony-mission-ends.html">infamous Ugandan guerrilla leader Joseph Kony</a>, who was <a href="https://www.icc-cpi.int/uganda/kony/Pages/main.aspx">indicted by the ICC in 2005</a> for using children as sex slaves and insurgents.</p>
<p>But some of the ICC’s newest cases hit close to home.</p>
<p>One is a pending investigation of American military actions in Afghanistan between 2003 and 2004. Dozens of people claim to have been tortured during interrogation by the CIA in <a href="https://www.hrw.org/report/2011/07/12/getting-away-torture/bush-administration-and-mistreatment-detainees">“black sites” created by the Bush administration</a>. Two current Guantanamo detainees, <a href="https://ccrjustice.org/sharqawi-al-hajj">Sharqawi Al Hajj</a> and <a href="https://ccrjustice.org/guled-hassan-duran">Guled Duran</a>, who are represented by legal counsel, have provided detailed testimonies to the ICC.</p>
<p>Another is the <a href="https://www.icc-cpi.int/palestine">ICC’s investigation</a> into possible crimes by Israel related to Jewish <a href="https://theconversation.com/israel-suspends-formal-annexation-of-the-west-bank-but-its-controversial-settlements-continue-144469">settlements in the West Bank and East Jerusalem</a>. Israel, like its ally the U.S., is not a member of the ICC.</p>
<p>In May, Secretary of State Mike Pompeo <a href="https://www.timesofisrael.com/pompeo-warns-icc-against-potential-illegitimate-war-crimes-probe-of-israel/">warned the ICC to end its “illegitimate” probes into the U.S. and Israel</a> or else face “consequences.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/355647/original/file-20200831-18-1n3t47b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters in front of the ICC building hold sigs saying 'Where is the ICC?' and 'Justice for Palestine'" src="https://images.theconversation.com/files/355647/original/file-20200831-18-1n3t47b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355647/original/file-20200831-18-1n3t47b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355647/original/file-20200831-18-1n3t47b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355647/original/file-20200831-18-1n3t47b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355647/original/file-20200831-18-1n3t47b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355647/original/file-20200831-18-1n3t47b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355647/original/file-20200831-18-1n3t47b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Activists in The Hague pressure the ICC to investigate Israel, Nov. 29, 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/activists-attend-a-rally-during-the-international-day-of-news-photo/1185489121?adppopup=true">Abdullah Asiran/Anadolu Agency via Getty Images</a></span>
</figcaption>
</figure>
<h2>Limited jurisdiction</h2>
<p>The ICC persisted, saying the U.S. could fend off the ICC by investigating the alleged war crimes itself.</p>
<p>“The I.C.C. is not intent on ‘hauling’ Americans up to trial before it,” wrote ICC president Eboe-Osujiin in a June 18 <a href="https://www.nytimes.com/2020/06/18/opinion/trump-icc.html">New York Times op-ed</a> responding to Trump’s Executive Order. It is simply committed to seeing credible claims against U.S. security personnel in Afghanistan investigated, Eboe-Osuji said.</p>
<p>But the U.S., like Israel, has refused to acknowledge that war crimes may have been committed. Such standoffs trigger ICC involvement as the court of last resort. </p>
<p>Historically, the International Criminal Court has almost exclusively prosecuted individuals from weaker nations, primarily in Africa. Some critics have dubbed it the “<a href="https://iccforum.com/africa">African criminal court</a>.” Yet most African countries, like other ICC members, remain supportive of the court’s work.</p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p>
<p>The ICC is also a slow, cumbersome and expensive form of justice. It has spent over US$1.2 billion over the past 12 years to successfully punish only three individuals of the dozens it has prosecuted. </p>
<p>But the court’s importance goes beyond its verdicts. Without its watchful eye and long arm, war criminals would roam free. </p>
<p>In undermining its work, the Trump administration claims to protect American security. But if the U.S. won’t cooperate with the ICC in international criminal investigations of its own citizens, other countries are less likely to help when the U.S. wants terrorists and war criminals brought to justice.</p><img src="https://counter.theconversation.com/content/143886/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Susan M. Akram does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The court prosecutes genocide, torture and grave wartime abuses worldwide. Trump’s executive order imposes on its lawyers and judges the kind of sanctions usually used on foreign terrorists.Susan M. Akram, Clinical Professor, School of Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1191552019-06-20T05:42:47Z2019-06-20T05:42:47ZMH17 charges: who the suspects are, what they’re charged with, and what happens next<p>Four men – three Russians and one Ukrainian – will be <a href="https://www.abc.net.au/news/2019-06-19/mh17-downing-airline-ukraine-suspects-charges-loom/11224216">charged</a> in relation to the shooting down of the Malaysia Airlines flight MH17, which killed all <a href="https://theconversation.com/much-more-to-be-done-before-mh17-findings-can-support-a-war-crime-trial-49054">298 passengers and crew</a> on board. </p>
<p>Dutch prosecutors will launch a criminal trial in The Hague on March 9, 2020. But the accused are beyond the jurisdiction of the court, and will most likely be tried <em>in absentia.</em> This means the accused will not be physically present in the court room.</p>
<p>The prosecutors argue the four accused were jointly responsible for obtaining a BUK TELAR missile launcher (a launcher for self-propelled, surface-to-air missiles allegedly <a href="https://www.nytimes.com/2018/05/24/world/europe/russia-malaysia-airlines-ukraine-missile.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer&login=email&auth=login-email">owned by the Russian military</a>) in the city of Kursk, and launching it from Ukraine. </p>
<p>They say the four men are responsible for the atrocity because they had the intention to shoot down an aircraft, and obtained the missile launcher for that purpose.</p>
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<a href="https://theconversation.com/ukraine-with-parliament-dissolved-new-president-must-now-get-serious-heres-how-117451">Ukraine: with parliament dissolved, new president must now get serious – here's how</a>
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<p>While investigators have not accused any suspects of actually firing the missile, they say in future they may identify others with that responsibility.</p>
<p>For the victims and their loved ones, these Dutch criminal trials present the best hope of legal acknowledgement for the tragedy.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1141375877592129536"}"></div></p>
<h2>The MH17 atrocity</h2>
<p>On July 17, 2014, flight MH17 was travelling from Amsterdam to Kuala Lumpur when it was <a href="https://www.theguardian.com/world/2014/jul/18/mh17-twenty-seven-australians-were-on-board-crashed-malaysian-plane">shot down</a> over Ukraine. </p>
<p>The <a href="https://www.om.nl/onderwerpen/mh17-crash/@96068/jit-flight-mh17-shot/">Joint Investigative Team</a> (JIT), led by Dutch authorities and comprising investigators from Malaysia, Australia, Belgium and Ukraine, concluded in 2016 that the flight was shot down by a Russian BUK missile. </p>
<p>The JIT identified the launch location as a field in eastern Ukraine, which at the time was in territory controlled by pro-Russian fighters.</p>
<p>The countries central to the investigation – including Australia, which lost 38 people – and the victims’ families have explored a range of legal strategies to assign blame for the attack. </p>
<p>Then Foreign Minister Julie Bishop initially proposed a <a href="https://www.theaustralian.com.au/nation/foreign-affairs/julie-bishop-urges-mh17-war-crimes-tribunal/news-story/b772ca0bb6bd28715819909f71c2be56">war crimes trial</a> for MH17, but this was <a href="https://russia-direct.org/opinion/why-russia-opposes-international-tribunal-mh17">vetoed</a> by Russia in the UN Security Council. </p>
<p>Some <a href="https://theconversation.com/challenges-persist-for-multiple-legal-actions-regarding-mh17-77722">civil claims</a> on behalf of victims’ families are ongoing before the European Court of Human Rights. </p>
<p>And <a href="http://www.ukrweekly.com/uwwp/russias-justification-for-mh17-and-other-surreal-moments-at-icj/">hearings</a> are ongoing before the International Court of Justice, where Ukraine seeks to <a href="https://www.icj-cij.org/en/case/166">make a case</a> against Russia. Ukraine cites the MH17 atrocity as characteristic of broader <a href="https://www.icj-cij.org/files/case-related/166/19314.pdf">Russian aggression</a> and lack of respect for Ukrainian sovereignty and independence. </p>
<h2>Russia’s response</h2>
<p>The Russian Foreign Ministry <a href="https://www.abc.net.au/news/2019-06-19/mh17-downing-airline-ukraine-suspects-charges-loom/11224216">rejected</a> this week’s announcement, in line with its earlier rejections of the JIT conclusions. It said:</p>
<blockquote>
<p>Once again, absolutely groundless accusations are being made against the Russian side, aimed at discrediting the Russian Federation in the eyes of the international community.</p>
</blockquote>
<p>Russian President Vladimir Putin earlier called the crash a “terrible tragedy”, but said Russia bore <a href="https://www.sbs.com.au/news/netherlands-set-to-prosecute-suspects-in-mh17-airliner-downing">no responsibility</a> for it. </p>
<p>Russian officials have claimed they were prepared to assist the investigation but had been “<a href="https://www.nst.com.my/world/2019/06/497652/moscow-says-mh17-charges-based-unfounded-allegations">frozen out</a>” of it.</p>
<h2>Who are the accused?</h2>
<p>Three of the four <a href="https://www.nytimes.com/2019/06/19/world/europe/mh17-crash.html?searchResultPosition=3">accused</a> are Russian nationals, believed to be living in Russia. </p>
<p>Igor Girkin is a former colonel in the Russian security service. At the time of the atrocity, Girkin was the minister of defence in the so-called Donetsk People’s Republic, a pro-Russian separatist region of Ukraine. </p>
<p>The other two Russian accused, Sergey Dubinsky and Oleg Pulatov, are former Russian military intelligence agents who worked under Girkin.</p>
<p>Leonid Kharchenko is the only Ukrainian national accused. Investigators are not certain of his current location. At the time of the atrocity, Kharchenko led a separatist combat unit. </p>
<p>The <a href="https://www.om.nl/onderwerpen/mh17-crash/@106096/prosecution-four/">specific charges</a> in relation to the four named suspects will be: </p>
<ol>
<li><p>Causing the crash of flight MH17, resulting in the death of all persons on board, punishable pursuant to Article 168 of the Dutch Criminal Code</p></li>
<li><p>The murder of the 298 persons on board of flight MH17, punishable pursuant to Article 289 of the Dutch Criminal Code.</p></li>
</ol>
<p>The investigation is ongoing and continues to call for witnesses to assist. </p>
<h2>What are the prospects for the trial?</h2>
<p>Dutch investigators will issue international arrest warrants for the four accused and place them on international wanted lists. But they won’t issue extradition requests because they know already that no extradition of nationals is available under the Ukrainian or Russian constitutions. </p>
<p>It seems impossible for the Dutch court to gain actual jurisdiction over the Russian accused. Potentially, should Ukrainian authorities apprehend Kharchenko, he could be tried via <a href="https://www.nst.com.my/world/2018/06/379470/dutch-mps-approve-ukraine-treaty-mh17-trial">video-link</a>. </p>
<p>The Netherlands and Ukraine have entered into an agreement that would permit such an arrangement and - should Kharchenko be convicted - allow for his imprisonment in Ukraine. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/challenges-persist-for-multiple-legal-actions-regarding-mh17-77722">Challenges persist for multiple legal actions regarding MH17</a>
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</em>
</p>
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<p>The charges and any penalties originate in Dutch, rather than international, criminal law. Convictions for murder or the intentional downing of an aircraft could result in sentences of up to life imprisonment. </p>
<p>It’s fair to question the value of a prosecution without a court having actual jurisdiction over the accused. The only real answer is that such a trial would enable the presentation and adjudication of evidence and the judgement of a court as to whether charges are made out. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A memorial for the victims of MH17 in the Donetsk region, Ukraine.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>As time goes, the chances of successful prosecutions decline. Meanwhile, interested countries and the victims’ families continue to call for <a href="https://www.abc.net.au/news/2016-10-05/lockerbie-no-model-for-the-effective-prosecution-of-mh17/7904644">legal redress</a> for the atrocity.</p>
<p>It is also legitimate to ask whether a court can ensure a <a href="https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">fair trial</a> for accused persons tried <em>in absentia.</em> </p>
<p>Although it is not explicitly prohibited by international human rights law, the absence of defendants and presumably any legal representative from the courtroom means the accused will not hear the evidence against them or have the ability to present a defence. </p>
<p>Given the four named accused are beyond the actual jurisdiction of the Dutch courts, it can be argued that they (and, at least in the case of Russia, their country) are wilfully avoiding the process of justice. This may be, for some or many observers, sufficient justification for trying them in their absence.</p><img src="https://counter.theconversation.com/content/119155/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire 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>Families of the 298 victims may, at last, see justice after five years.Amy Maguire, Associate Professor, University of NewcastleLicensed 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/878872017-11-23T11:48:40Z2017-11-23T11:48:40ZUK is out of the International Court of Justice – and it’s hard to not see Brexit at play<p>The UN has used its first opportunity since the Brexit referendum to send a powerful message. In a significant diplomatic setback, UK judge Christopher Greenwood has lost the seat he has held on the International Court of Justice since 2008. This is the first time the UK has not been represented on the court since its inception in 1946.</p>
<p>As the postmortem begins, there are undoubtedly a number of contributing factors in this decision. But the potential significance of Brexit should not be ignored. </p>
<p>The principal judicial organ of the UN holds elections every three years, with five vacancies each time around. This year, judges from France, Somalia and Brazil were reelected without incident. If bookmakers were offering a market on the election, the odds on the two remaining seats being filled by Greenwood and Dalveer Bhandari from India (who were both seeking reelection) would have been very short indeed. Instead, Nawaf Salam, Lebanon’s permanent representative to the UN, was surprisingly elected for the first time. That left Greenwood and Bhandari to contest the remaining seat. </p>
<p>In a series of subsequent votes, the General Assembly and the Security Council faced an unprecedented impasse. The former favoured Bhandari and the latter Greenwood. </p>
<p>As the plenary organ of the UN, within which all members are represented, the UK faced increasing pressure to respect the democratic credentials of the General Assembly. Just minutes before a third meeting was due to take place on November 13, it conceded the election.</p>
<h2>Why the UK, why now?</h2>
<p>The concession still came as a surprise to many, not least because permanent members of the Security Council (China, France, Russia, the US and the UK) have traditionally always been represented on the Court. While China decided not to nominate a candidate between 1967-85, no member of the P5 has ever lost a majority vote of the General Assembly. </p>
<p>Judges sit as independent experts and do not “represent” the interests of their national state once appointed. Greenwood’s controversial legal advice to the Attorney General on the legality of invading Iraq in 2003 may have been a factor. That said, Greenwood was initially elected in 2008, when the advice would be more likely to have an impact, and he has since been a respected member of the Court.</p>
<p>Instead, the election might be seen as a proxy battle in the ongoing debate on UN reform. The privileges enjoyed by the P5 are indeed archaic and unjustified. The current composition now means that Asia has gained a seat on the Court and the Western European and Other Group has lost one. It’s therefore also of symbolic value that the beneficiary of the UK’s demise on the Court is India. India has been at the centre of calls to reform the principal organs of the UN in line with geopolitical shifts and the emerging global economies. </p>
<p>But it’s impossible to ignore the fact that the ICJ election was the first opportunity for the international community to pass judgement on the UK since the Brexit referendum. On a day of losses, it was also announced on November 13 that the EU has decided to move the European Medicines Agency and the European Banking Authority to Amsterdam and Paris. Both Agencies are currently located in London. According to the <a href="http://europa.eu/rapid/press-release_IP-17-4777_en.htm">European Commission</a>: “The relocation of these two agencies is a direct consequence – and the first visible result – of the United Kingdom’s decision to leave the European Union.”</p>
<p>This should have come as no surprise. The agencies are inevitable causalities of triggering Article 50, as it would make no sense to locate them in a non-member state. And indeed, it may be overly simplistic, or even a post hoc fallacy, to read too much correlation. But while there may be no direct causal link, it would also be overly simplistic to deny outright the possibility that this result is a symptom of the UK’s waning influence in global affairs. And Brexit has undoubtedly contributed to that. As the UK unilaterally withdraws from multilateralism, in turn the UN, the archetypal multilateral institution, has edged away from the UK. </p>
<p>For if the result is simply the most recent snipe at P5 dominance, this fails to address the question of why the decision has come now, if it has not been taken at least to some degree in the context of Brexit? Nor does it explain why it has to be this particular member of the P5 that must take the hit. The UK has, after all, historically been the strongest supporter of the Court and is the only permanent member that has consistently respected the court’s compulsory jurisdiction. </p>
<p>It should come as no surprise that the election to the ICJ was decided by politics and not international law. It has always been this way. The only difference is that the UK and its allies in the Security Council have traditionally been the beneficiaries of such power politics. It is impossible to identify just one factor to explain this significant shift, but to deny the indirect relevance of the Brexit referendum would be very naive indeed. The principal political organ of the UN has spoken: the UK’s global standing has paid the price.</p><img src="https://counter.theconversation.com/content/87887/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben L Murphy 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>After a tense election campaign, India will have a seat at this important table, while Britain is left out in the cold.Ben L Murphy, Lecturer in Law, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/755172017-04-05T01:10:08Z2017-04-05T01:10:08ZBosnia’s 25-year struggle with transitional justice<figure><img src="https://images.theconversation.com/files/164098/original/image-20170405-14629-16m39ti.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Graves at the memorial center Potocari, near Srebrenica</span> <span class="attribution"><span class="source">AP Photo/Amel Emric</span></span></figcaption></figure><p>The Bosnian war started 25 years ago this week.</p>
<p>Although bombs ceased falling in 1995, in many ways the people of Bosnia and Herzegovina (BiH) are as divided as ever. The past two decades have repeatedly shown that divisions exacerbated by the war continue to permeate politics. </p>
<p>In fact, according to a 2013 public opinion poll, just one in six residents of BiH feels that the three ethnic groups that live there – the Bosniaks, Serbs and Croats – have reached <a href="http://www.media.ba/sites/default/files/prism_research_for_un_rco_statistical_report_1.pdf">reconciliation</a>.</p>
<p>It would be easy to pass this sentiment off as what one former U.S. secretary of state called “<a href="http://dosfan.lib.uic.edu/ERC/briefing/dispatch/1992/html/Dispatchv3no52.html">ancient tribal, ethnic and religious rivalries</a>.” But I believe it raises profound doubts about the ability of international justice to bring about a more peaceful world.</p>
<p>As I demonstrate in my book, <a href="http://undpress.nd.edu/books/P01398">“The Costs of Justice</a>,” transitional justice – the process of dealing with human rights abuses committed by a previous regime – is an inherently political process made even more contentious by taking it out of the country. The fallout is not just a lack of reconciliation, but also the constant threat of violence. </p>
<p>In BiH, <a href="http://www.media.ba/sites/default/files/prism_research_for_un_rco_statistical_report_1.pdf">more than 30 percent</a> believe a renewal of armed conflict could be right around the corner.</p>
<h2>The G word</h2>
<p>Ongoing resentment in BiH was highlighted by two recent events. </p>
<p>First was the fall election of a Serbian genocide denier, Mladen Grujicic, as mayor of <a href="https://www.hrw.org/news/2005/07/10/legacy-srebrenica">Srebrenica</a> – a town where more than 8,000 Bosniaks, or Bosnian Muslims, were systematically killed in 1995.</p>
<p>Next came the Bosniak response: a February <a href="http://www.rferl.org/a/icj-bosnia-serbia-genocide/28360242.html">request</a> for the International Court of Justice (ICJ) to review its 2007 ruling that cleared the neighboring state of Serbia of complicity in genocide during the war. </p>
<p>The war may be long over, but wounds are still oozing. </p>
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<p>Lack of reconciliation in BiH comes despite – or perhaps because of – a major international effort to ensure justice in the region. BiH, like other states of the former Yugoslavia, was under the jurisdiction of the <a href="http://www.icty.org/en/about">International Criminal Tribunal for the former Yugoslavia</a> (ICTY) at The Hague for more than two decades. </p>
<p>The ICTY’s establishment in 1993 was greeted by human rights advocates as the harbinger of a new era of justice. At the time, transitional justice scholars preached its <a href="https://bookstore.usip.org/books/BookDetail.aspx?productID=51329">numerous benefits</a>. These included deterring future rights violations, strengthening rule of law, increasing the legitimacy of a new regime and, perhaps most importantly, encouraging reconciliation within broader society.</p>
<p>There are many <a href="http://journals.sagepub.com/doi/abs/10.1177/0022343309340108">ways to address</a> past rights abuses – from issuing apologies and providing victim compensation to holding truth commissions and launching criminal trials. The international community has historically focused on the latter – whether at <a href="https://global.oup.com/academic/product/accountability-for-human-rights-atrocities-in-international-law-9780199546671?cc=us&lang=en&">Nuremberg</a>, <a href="http://law2.umkc.edu/faculty/projects/ftrials/tokyo/tokyolinks.html">Tokyo</a> or <a href="http://www.cornellpress.cornell.edu/book/?GCOI=80140100357920">The Hague</a>.</p>
<p>Criminal prosecutions are largely symbolic, but they are nonetheless important. They signal the end of impunity, or the ability to escape punishment, and the start of a more just order. The fact that post-conflict countries frequently lack institutions strong or independent enough to pursue criminal prosecutions on their own makes international mechanisms indispensable. Indeed, BiH’s inability to carry out its <a href="https://www.ictj.org/sites/default/files/ICTJ-FormerYugoslavia-Domestic-Court-2008-English.pdf">own criminal trials</a> for a decade and a half points to a real need for international courts. </p>
<p>But the very process of taking criminal prosecutions out of the domestic purview can ultimately be a <a href="https://global.oup.com/academic/product/accountability-for-human-rights-atrocities-in-international-law-9780199546671?cc=us&lang=en&">blow to justice</a>. Most locals, for instance, lose interest in trials that play out in faraway courtrooms, meaning trials fail to bring about the sorts of dialogue that might lead to mutual understanding. </p>
<p>Formidable challenges of international prosecutions, from learning the intricacies of a foreign culture and political regime to collecting evidence essential for a successful prosecution, mean that international trials also take a long time to complete. And, of course, they are expensive. The <a href="https://www.wcl.american.edu/hrbrief/15/3skilbeck.pdf">ICTY cost</a> more than US$1 billion, or between $10 million and $15 million for each person accused. Various countries, including the United States, footed the bill.</p>
<p>And yet, rather than improve relations in the region, the ICTY may have <a href="http://undpress.nd.edu/books/P01398">incited tensions</a>. Each of the parties claimed they were unfairly targeted. Serbs were infuriated by their overrepresentation on the court’s docket. Croats couldn’t believe that any of their heroes were facing judgment. </p>
<p>Little surprise then that <a href="http://www.media.ba/sites/default/files/prism_research_for_un_rco_statistical_report_1.pdf">only 8 percent</a> of those polled in BiH in 2013 felt the ICTY had done a good job facilitating reconciliation. </p>
<p>While international courts did little for reconciliation, they fundamentally sabotaged more <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2486.2009.00891.x/abstract">organic forms of justice</a> than could otherwise have happened at the local level. In the former Yugoslavia, political leaders who were struggling to balance international pressure for – and domestic opposition to – ICTY cooperation opted for half-baked local initiatives designed to satisfy both. The result was a watered-down <a href="https://www.usip.org/publications/2002/02/truth-commission-serbia-and-montenegro">truth commission</a> here, an <a href="http://www.rferl.org/a/1105227.html">apology</a> of questionable sincerity there. </p>
<p>These half-measures ultimately replaced what might have been <a href="https://academic.oup.com/ijtj/article-abstract/10/2/292/2356904/History-of-a-Failure-Attempts-to-Create-a-National?redirectedFrom=fulltext">more earnest mechanisms</a> had they not been established in the context of ongoing international trials. The recent Bosniak appeal to the ICJ, just like the key political victory of a Serb genocide denier, highlights the degree to which justice and historical memory remain politicized in BiH a quarter-century after the war began. </p>
<h2>The ICTY’s long shadow</h2>
<p>The ICTY and subsequent tribunals demonstrated that international prosecutions can play an important role in ending impunity. But they must carefully balance the need of the international community to ensure accountability with the needs of a local populace to deal with past rights abuses on their own terms. </p>
<p>Limiting international prosecutions to the most serious perpetrators is one way to reach this balance. Few in Serbia shed tears for the arrest of Slobodan Milosevic, a corrupt dictator. </p>
<p>Even then, the recent experience of the International Criminal Court (ICC), established in 2002 as a permanent and global version of the ICTY, demonstrates this can be a tough sell. Numerous African states have accused the ICC of the same bias Yugoslavs attributed to the ICTY. They are <a href="https://www.theguardian.com/law/2017/jan/31/african-leaders-plan-mass-withdrawal-from-international-criminal-court">threatening to withdraw</a> as a result.</p>
<p>Back in Bosnia, the <a href="http://www.rferl.org/a/icj-bosnia-serbia-genocide/28360242.html">ICJ last month rejected</a> the Bosniak request on the grounds it did not come from all three members of the country’s <a href="https://www.theguardian.com/news/datablog/2014/oct/08/bosnia-herzegovina-elections-the-worlds-most-complicated-system-of-government">tripartite presidency</a>. In other words, the very lack of reconciliation between Bosniaks, Serbs and Croats that prompted the initial appeal now makes that appeal impossible. It is ironic that Bosniaks still feel the need to turn to international justice mechanisms for redress. After all, international justice may bear some blame for the predicament they’re in today.</p><img src="https://counter.theconversation.com/content/75517/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Grodsky received funding from a number of organizations while carrying out research in the former Yugoslavia, including grants from Fulbright-Hayes and the Woodrow Wilson International Center for Scholars. </span></em></p>How long does it take to make peace? Decades after the end of the Bosnian war, just one in six residents felt that country had reached reconciliation.Brian Grodsky, Associate Professor of Political Science, University of Maryland, Baltimore CountyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/566872016-03-25T08:42:25Z2016-03-25T08:42:25ZICC’s Bemba ruling is a landmark, but falls short of a big leap<figure><img src="https://images.theconversation.com/files/116388/original/image-20160324-17832-qlmnq1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jean-Pierre Bemba Gombo enters the court room of the ICC.</span> <span class="attribution"><span class="source">Reuters/Jerry Lampen</span></span></figcaption></figure><p>March 21 2016 heralded the <a href="http://www.theguardian.com/world/2016/mar/21/icc-finds-ex-congolese-vice-president-jean-pierre-bemba-guilty-of-war-crimes">first conviction</a> for crimes of sexual violence at the International Criminal Court (ICC) in the Hague. The case was against Jean-Pierre Bemba Gombo. Bemba, a citizen from the Democratic Republic of Congo (DRC), stood trial as president and commander-in-chief of the Mouvement de libération du Congo (MLC) and was convicted of five counts of murder, rape and pillaging, amounting to war crimes and crimes against humanity.</p>
<p>Bemba was found guilty for failing to prevent and stop crimes committed by MLC soldiers in the Central African Republic (CAR) from 2002 to 2003. The MLC had been <a href="http://www.globalsecurity.org/military/world/para/mlc.htm">invited</a> to enter the CAR to assist former President Ange-Félix Patassé to fight against an attempted <a href="http://www.economist.com/node/1648658">coup d’etat</a>.</p>
<p>The Bemba conviction is hailed as a landmark case for two reasons. The case marks the first time that the concept of command responsibility has been used by the ICC. Also, the charges focused on the use of sexual violence as a <a href="http://www.theguardian.com/world/2016/mar/21/icc-finds-ex-congolese-vice-president-jean-pierre-bemba-guilty-of-war-crimes">weapon of war</a>.</p>
<p>While the case is hailed as significant for the court, it would be prudent to exercise caution when calling this a historic victory. A dose of perspective is needed.</p>
<p>The recognition of sexual and gender-based violence has steadily developed in international law. While there were no specific prosecutions for these types of crimes in <a href="http://www.history.com/topics/world-war-ii/nuremberg-trials">Nuremberg</a>, the judges denounced the use of sexual violence as a form of torture. At the <a href="https://history.state.gov/milestones/1945-1952/nuremberg">Tokyo tribunal</a> there were specific prosecutions that recognised the systematic use of 200,000 so-called “comfort women’ as sexual slaves by the Japanese military. </p>
<p>There have also been critical developments in the Yugoslav and Rwanda tribunals. According to the <a href="http://www.icty.org/en/in-focus/crimes-sexual-violence">Yugoslav tribunal,</a> almost half of those convicted have been found guilty of elements involving sexual violence. The <a href="http://unictr.unmict.org/en/tribunal">Rwanda tribunal</a> became the first international court to find a person guilty of rape as a crime of genocide. </p>
<p>All in all, international tribunals have widened recognition of sexual and gender-based crimes so that they fall under the umbrella of genocide, crimes against humanity, persecution, enslavement, torture and other inhumane acts.</p>
<h2>Wider implications</h2>
<p>The wider implications of the case can be divided into two categories: the known and the unknown.</p>
<p>What we know is that the verdict itself is an international act of retribution – the view that proportional punishment should be meted out for every crime. Whatever the consequences, justice must be done.</p>
<p>We also know that the ICC has re-committed itself to pursuing further cases dealing with sexual violence. This was demonstrated most recently in the confirmed case against <a href="https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1202.aspx">Dominic Ongwen.</a></p>
<p>But we do not know the extent to which this decision will have any real impact in halting the sexual violence being perpetrated in the CAR and in other conflicts on the continent.</p>
<p>We also do not know if it will lead to a change in attitude of the civilian and military leadership controlling armed groups. One should be deeply sceptical about assuming that these individuals will now suppress a culture of savage violence and ill discipline among their ranks. </p>
<p>The deterrent effect of international law remains ambiguous and unproven. Value may lie in the message from the court rather than any hope for real world change. </p>
<h2>Commanders can’t wash their hands</h2>
<p>As a civilian and military commander, Bemba was held criminally responsible for atrocities committed by his soldiers that targeted the civilian population. The judges made clear that despite his lack of presence on battlefield or at the crime scene, Bemba knew that his ”<a href="http://www.coalitionfortheicc.org/documents/CPIaffbemba502ang2008.pdf">Banyamulengués</a>“ were committing crimes. The judges concluded that, as the commander with effective authority and control, Bemba had failed to take all necessary and reasonable measures within his power to prevent or repress the actions of the MLC.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/116291/original/image-20160323-28178-8plxu0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/116291/original/image-20160323-28178-8plxu0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/116291/original/image-20160323-28178-8plxu0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/116291/original/image-20160323-28178-8plxu0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/116291/original/image-20160323-28178-8plxu0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/116291/original/image-20160323-28178-8plxu0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/116291/original/image-20160323-28178-8plxu0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Banyamulengué soldiers loyal to Jean-Pierre Bemba.</span>
<span class="attribution"><span class="source">AFP/File / Desirey Minkoh</span></span>
</figcaption>
</figure>
<p>ICC Prosecutor Fatou Bensouda released a <a href="https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-bemba-21-03-2016.aspx">statement</a> that serves as an unequivocal warning for those in positions of command or authority:</p>
<blockquote>
<p>They cannot take advantage of their power and status to grant to themselves, or their troops, unchecked powers over the life and fate of civilians. They have a legal obligation to exercise responsible command and control over their troops.</p>
</blockquote>
<p>Put simply, they cannot wash their hands of responsibility. </p>
<p>This is a powerful message that the ICC, as an institution, needed to send. The court’s relationship with Africa has been tumultuous, with claims of a biased prosecutorial strategy against Africa and charges that it represents a neocolonial tool of intervention. Ultimately, the ICC needed a good Africa story.</p>
<p>In the DRC many eagerly awaited <a href="https://justicehub.org/article/jean-pierre-bemba-eagerly-awaited-drc">the release of Bemba</a> and there were predictions that he would make a return to the political stage. He had once been a presidential candidate.</p>
<p>There is no doubt that on a regional level the conviction will come as a <a href="https://www.fidh.org/en/region/Africa/central-african-republic/21-march-icc-to-issue-long-awaited-verdict-in-trial-against-jean">welcome victory</a> for some and <a href="http://www.journaldebangui.com/article.php?aid=9743">a shock</a> to others in the CAR and DRC.</p>
<p>Many had believed that Bemba was beyond the reach of the law. The signal from the court may go some way to ruffling the feathers of individuals in positions of civilian and military leadership who themselves are suspected of committing atrocities.</p>
<p>As the first case in the institution’s history dealing with command responsibility, the conviction should be welcomed as progress.</p>
<h2>Prioritising sexual violence in conflict</h2>
<p>Sexual and gender-based violence has featured heavily in the conflicts under investigation at the ICC but been under-represented in terms of prosecutions. In a 2015 <a href="http://www.un.org/sexualviolenceinconflict/countries/central-african-republic/">report by the UN Secretary General</a> to the Security Council, cases of conflict-related sexual violence were documented in the CAR. Further evidence revealed that these crimes were being systematically perpetrated by armed groups.</p>
<p>Condemning the use of rape as a weapon of war is neither unique nor limited to the work of the ICC. The deeper question arises of what impact international justice can have in dealing with sexual and gender-based violence in conflicts.</p>
<p>Bemba’s conviction serves as a reminder that international justice lags woefully behind the atrocities themselves and may do very little to address the physical, psychological and social impact on the victims’ lives. </p>
<p>As one victim told the court, being raped has left her stigmatised in the community because she is known as a <em>"Banyamulengué’s wife”</em> . </p>
<p>Given that it has taken the ICC nearly 14 years to get this far, the conviction should be viewed as making a significant yet modest contribution in the campaign for justice.</p>
<p>If sexual and gender-based violence are to truly become a global priority, then the ICC must be consistent and expedient in dealing with these crimes. </p>
<h2>Limits of international prosecutions</h2>
<p>While more than 5,000 victims were able to participate and express their views through their legal representatives in the Bemba case, countless others have been subjected to past and current victimisation. The Bemba case comes too little or too late for countless more victims in the CAR. </p>
<p>This case spotlights the limits of international prosecutions. To counterbalance this, the situation much closer to victims must be addressed. </p>
<p>Sexual and gender-based crimes are intensely personal yet cause irrevocable individual and societal harm. Justice will only truly be done when we accept that victims of sexual and gender-based violence in Africa should not bear the shame and stigma that society imposes on them. And when we acknowledge that serious sexual, mental and physical violence deserves redress beyond the courtrooms of the Hague. </p>
<p>So, while the Bemba case is a small step, the giant leap has yet to come.</p><img src="https://counter.theconversation.com/content/56687/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yassin Brunger 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>Jean-Pierre Bemba Gombo has been convicted for crimes of sexual violence during war in the Central African Republic. It’s a significant case, but not the historic victory it’s been hailed as.Yassin Brunger, Lecturer in Socio-Legal Studies, University of LeicesterLicensed 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>
<figcaption>
<span class="caption">Benjamin Netanyahu: not for turning.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&search_tracking_id=r2cu-xt1anMGaFCfjo-s9Q&searchterm=netanyahu&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=126921725">yakub88</a></span>
</figcaption>
</figure>
<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.tag:theconversation.com,2011:article/326282014-10-09T03:53:04Z2014-10-09T03:53:04ZThe International Criminal Court on trial as it takes on a President<p>The first appearance of a head of state at the <a href="http://www.icc-cpi.int/en_menus/icc/Pages/default.aspx">International Criminal Court</a> at The Hague yesterday was a landmark event. </p>
<p>But instead of getting any closer to the truth about who was behind violence that claimed more than 1,000 lives in Kenya in 2007, the court has also found itself on trial. </p>
<p>The case has highlighted many of the weaknesses of the world’s only international legal avenue for pursuing people responsible for genocide, war crimes and other crimes against humanity. Indeed, whatever decision the court reaches will have far-reaching consequences for attempts to achieve international justice in the future. </p>
<h2>No evidence – or evidence withheld?</h2>
<p>Kenyan President Uhuru Kenyatta arrived to a crowd of dancing, cheering supporters outside the court in the Netherlands. </p>
<p>Kenyatta faces <a href="http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/icc01090211/pages/icc01090111.aspx">charges of crimes against humanity</a> over allegations that he helped instigate violence that followed Kenya’s December 2007 presidential election. More than 1,000 people were killed and <a href="http://www.bbc.com/news/world-africa-24022005">more than 600,000 people displaced</a>. </p>
<p>He is alleged to have been “<a href="http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/icc01090211/pages/icc01090111.aspx">criminally responsible as an indirect co-perpetrator</a>” in cases of murder, deportation or forcible transfer, rape, persecution and other inhumane acts.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/WpjwQCaT-qE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">CNN on the Kenyatta trial.</span></figcaption>
</figure>
<p>While Kenyatta was appearing and was charged as an individual, the case has made <a href="http://www.washingtonpost.com/blogs/worldviews/wp/2014/10/08/why-kenyas-president-came-to-the-international-criminal-court-and-why-thats-a-problem-for-the-icc/">headlines around the world</a> as he is the first sitting head of state to appear at the ICC since it was established 12 years ago to prosecute war crimes.</p>
<p>Kenyatta’s guilt or innocence will not be determined this week. Instead, Kenyatta has been called to the ICC to explain allegations that the Kenyan government had withheld evidence against him - in particular, phone records that the prosecution argues prove links between Kenyatta and the Mungiki sect, which took part in the deadly 2007 violence. </p>
<p>As a signatory to the Rome Statute, Kenya is obliged to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”.</p>
<p>There have also been claims of witnesses being bribed and intimidated. <a href="http://www.theguardian.com/world/2014/jul/17/icc-uhuru-kenyatta-kenya">Kenyan human rights lawyers</a> have described “how potential witnesses have been cajoled and bullied into withholding their testimony”. </p>
<p>The day before the president’s appearance, Kenyan Attorney-General Githu Muigai argued at the ICC that the lack of evidence against Kenyatta was reflective of the weakness of the prosecution’s case rather than proof that evidence had been withheld.</p>
<h2>Why the ICC is so controversial – especially in Africa</h2>
<p>The Kenyatta case is controversial. It represents the first time that the court’s <a href="http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/Pages/structure%20of%20the%20court.aspx#c">Office of the Prosecutor</a> (OTP) has initiated an investigation. Until now, all the other cases being investigated have been either self-referrals or, in the case of Libya and Sudan, referred through United Nations Security Council resolutions. </p>
<p>There are also questions as to whether the Kenyan situation lies within the ICC’s remit. Traditionally, domestic judiciaries deal with such cases. Importantly, the ICC is a court of last resort; prosecutions proceed only once the OTP is convinced that the state in question has neither the capacity nor willingness to initiate legal proceedings. </p>
<p>However, in the seven years since the ethnically motivated post-election violence occurred, Kenyan authorities have shown little desire to prosecute those responsible, despite assurances that a special tribunal would be established to try the perpetrators. </p>
<p>According to <a href="http://www.hrw.org/reports/2008/03/16/ballots-bullets">Human Rights Watch</a>, not only have the authorities failed to provide justice for the victims of the violence, there has been impunity for police officials implicated in crimes. </p>
<p>A further controversy concerns Kenyatta’s status as president and whether that should excuse him from prosecution. Three things to keep in mind: first, when indicted, Kenyatta was serving as finance minister and deputy prime minister in a grand coalition government. </p>
<p>Second, he has been charged as an individual, not as a government official. </p>
<p>Finally, one of the primary rationales for the establishment of the ICC was to render the idea of sovereign impunity redundant. </p>
<p>Complicating this further, Kenyatta has taken advantage of a provision in the Kenyan constitution that allows him to resign the presidency for the duration of his time at the ICC. (He <a href="http://www.theguardian.com/world/2014/oct/06/kenyan-president-uhuru-kenyatta-attend-international-criminal-court">temporarily handed over power</a> to Deputy President William Ruto, who is also <a href="http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/icc01090111/Pages/icc01090111.aspx">facing charges at the ICC</a> as an “indirect co-perpetrator” involved with murder, deportation or forcible transfer of population, and persecution.)</p>
<p>So, technically, for the period that Kenyatta appeared at the International Criminal Court, he wasn’t a head of state.</p>
<p>Kenyatta did this arguing that he did not want to compromise the sovereignty of Kenyans. </p>
<p>This seems rather disingenuous; his words and actions leading up to this week’s proceedings suggest that he is primarily motivated by self-interest. </p>
<h2>Hunting Africans?</h2>
<p>Ethiopian Prime Minister Hailemariam Desalegn and others have accused the ICC of “hunting Africans”, at the expense of harder, more politically sensitive cases.</p>
<p>A cursory glance at the <a href="http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx">21 cases in nine situations</a> that have been brought before the ICC suggest there might be some truth in this: all of the situations under investigation are in African countries. </p>
<p>However, as <a href="https://theconversation.com/international-criminal-court-is-not-just-for-hunting-africans-18072">I’ve argued before</a>, in and of itself, this is not a problem. </p>
<p>The greater problem is those situations <em>not</em> under investigation, such as Sri Lanka, Syria and Israel/Palestine, for example.</p>
<h2>What happens next?</h2>
<p>After this week’s hearings, the case has been adjourned for now. There are now two most likely outcomes.</p>
<p>The first is that the Trial Chamber will make a finding of non-cooperation against Kenya as a state party and refer the matter to the Assembly of States Parties for appropriate action (as stipulated under Article 122 of the Rome Statute). </p>
<p>In practice, this would mean further delays and, considering the court’s lack of an enforcement mechanism, might make very little difference to Kenya’s obstinacy. </p>
<p>The second outcome – which has been aggressively pursued by Kenyatta’s defence team – is for the Trial Chamber to declare that there is insufficient evidence for the trial to continue. </p>
<p>If the Trial Chamber does decide to drop the case, it would be a massive blow to international justice. It would most likely close the last avenue of legal justice to the victims of the post-election violence in Kenya.</p>
<p>And it would also serve to undermine one of the key reasons the ICC was established: to challenge sovereign impunity. </p>
<h2>What this case shows about the ICC</h2>
<p>This case has demonstrated both the strengths and the weaknesses of the ICC. </p>
<p>For all its limitations, the ICC still provides an avenue for justice where otherwise none would exist. <a href="http://www.voanews.com/content/kenyans-split-over-kenyatta-icc-appearance/2476919.html">Those arguing</a> that Kenyatta should respond to charges at the ICC note that the Kenyan justice system lacks transparency and fairness: </p>
<blockquote>
<p>These are our leaders, and I think they have a lot of money, and I know they can do everything. But when they go to the ICC, I think there will be justice there, because there is no corruption there. In most of our courts here, I think there is corruption.</p>
</blockquote>
<p>Indeed, Fergal Gaynor, the victim’s representative at this week’s proceedings, argued that “victims should not pay the price of obstruction to justice by the Kenyan government”. </p>
<p>But this case has also demonstrated the degree to which the ICC remains dependant, even beholden, to the cooperation of states like Kenya.</p>
<p>The Kenyan government’s ongoing refusal to acknowledge the ICC’s authority is part of a broader, regressive trend that erodes the progress made against sovereign impunity in Africa. </p>
<p>At an African Union summit in July this year, African leaders agreed to set up an African court of justice and human rights, which would grant sitting leaders and senior officials immunity from prosecution on charges of war crimes, crimes against humanity and genocide. </p>
<p>While we await the Trial Chamber’s decision, we seem as far away from a truly global legal mechanism for justice as we have ever been.</p><img src="https://counter.theconversation.com/content/32628/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matt Killingsworth 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 first appearance of a head of state at the International Criminal Court at The Hague yesterday was a landmark event. But instead of getting any closer to the truth about who was behind violence that…Matt Killingsworth, Lecturer in International Relations, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/313512014-09-08T20:25:06Z2014-09-08T20:25:06ZJapan could resume whaling – this time with The Hague’s blessing<figure><img src="https://images.theconversation.com/files/58432/original/ns7bjss5-1410157434.jpg?ixlib=rb-1.1.0&rect=3%2C14%2C2485%2C1642&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Japan's whaling program was defeated in The Hague, but that might not stop more whales being taken in the future.</span> <span class="attribution"><span class="source">EPA/Tim Watters/Sea Shepherd Australia/AAP</span></span></figcaption></figure><p>Japan is reportedly set to release <a href="http://www.theguardian.com/world/2014/sep/04/japan-diplomatic-row-bypassing-whaling-ban-antarctic">plans to resume killing whales in the Southern Ocean</a> in the 2015-16 season. </p>
<p>It seems like a defiant move, coming just six months after the International Court of Justice (ICJ) <a href="http://www.icj-cij.org/docket/files/148/18160.pdf">ruled</a> that Japan’s scientific whaling program violated the <a href="http://iwc.int/private/downloads/1r2jdhu5xtuswws0ocw04wgcw/convention.pdf">1946 International Convention for the Regulation of Whaling</a> – a decision hailed as a resounding victory for the Australian-led legal challenge to the program. </p>
<p>But the judgment, emphatic though it was, does not completely close the loophole in the convention that allows whaling for scientific purposes. If Japan can come up with a proposal that satisfies the conditions laid down by the court, there may be no barrier to it beginning whaling again. </p>
<h2>Why did Japan lose the court case?</h2>
<p>In a <a href="http://theconversation.com/whaling-in-the-antarctic-japans-scientific-program-illegal-23824">decisive judgment</a> that surprised many observers, the ICJ found that Japan’s Southern Ocean scientific whaling program (known as JARPA II) did not meet the whaling convention’s requirements. The court found (by 12 votes to 4) that Japan’s activities were not covered by Article VIII of the convention, which allows whaling for scientific purposes. It therefore found Japan to be in breach of bans on commercial whaling and the use of factory ships.</p>
<p>The court did not say that scientific whaling in general is unlawful, stressing that scientific programs can be pursued for reasons besides conservation or sustainable exploitation of whale stocks. The court was at pains to stay away from contested areas of whale conservation politics, observing that its role was not to deal with these issues but instead was only to examine whether Japan’s scientific whaling program met the requirements of Article VIII.</p>
<p>The court separated Article VIII into two parts, focusing first on whether Japan’s whaling program was scientific, and then on whether it was conducted primarily for scientific purposes. It was only on the latter count that Japan was found wanting.</p>
<p>The court did not venture a view as to what science is (despite some fascinating debate in the courtroom on this point between Australia and Japan). After reviewing Japan’s stated scientific objectives for its Antarctic whale hunt, the court said that “the JARPA II activities involving the lethal sampling of whales can broadly be characterized as ‘scientific research’”. </p>
<p>When I was live-calling the judgment on ABC News 24, my initial reaction was that this meant that Australia had lost its case. However, as the judgment continued, it soon transpired that the court was not convinced that Japan was matching its apparently lofty scientific goals with a method that was actually fit for purpose.</p>
<p>The court was not convinced that Japan had given full and reasonable explanations for its planned sample sizes (850 minke whales, 50 fin whales, and 50 humpback whales) and the enormous variation in the actual numbers of whales taken each season. The evidence suggested that the sample sizes were quite arbitrary, and not really directed at achieving Japan’s scientific objectives, which were to: </p>
<ul>
<li>monitor the Antarctic ecosystem</li>
<li>model competition among whale species and future management objectives</li>
<li>work out temporal and spatial changes in whale population structure</li>
<li>improve management of minke whale stocks. </li>
</ul>
<p>The take of a reduced number of minke and fin whales, and no humpback whales at all, was found to be a function of political and logistical considerations, rather than scientific ones. In sum, the court found that there was no reasonable relationship between Japan’s planned scientific program and the way it did the whaling.</p>
<h2>What will Japan do now?</h2>
<p>After unsuccessfully challenging the court’s jurisdiction, Japan <a href="http://www.smh.com.au/federal-politics/political-news/japan-will-abide-by-courts-whaling-decision-20140331-35ull.html">indicated</a> that it would abide by the ruling. This might be because the Japanese government <a href="http://www.theguardian.com/environment/2014/jul/08/tony-abbott-urged-to-raise-whaling-concerns-with-shinzo-abe">believes</a> it can continue whaling in <a href="http://www.smh.com.au/environment/whale-watch/japanese-whalers-plan-new-antarctic-hunt-20140412-36jnf.html">one form or another</a> while still complying with the conditions set by the court.</p>
<p>Japan is now reportedly preparing to submit fresh plans to the IWC’s general meeting in Slovenia this month, and to the commission’s scientific committee in November. The Whaling Convention allows parties to draw up scientific whaling plans unilaterally, so there is nothing in international law stopping Japan going ahead without the IWC’s blessing. </p>
<p>However, it is clear from the court’s judgment that a major reason for Japan’s loss is that it failed over many years to engage constructively with the IWC and to explain the reasoning behind its whaling program.</p>
<p>The issue also hinges on whether Japan can conceive of a new Antarctic whaling program that matches the criteria set by the court. The court did not set specific limits on the number or species of whale that Japan could legitimately target, simply ruling that the sample sizes needed to be “reasonable”. </p>
<p>Japan might therefore decide to take a two-pronged approach for its new program: first, it could set less ambitious scientific objectives; and second, it could seek to take fewer whales. The dilemma is that a very small sample may not be scientifically valid, yet a very large one could set off yet another round of international recrimination. Moreover, a very small take of whales would be harder to justify economically, given the <a href="http://thediplomat.com/2014/08/japanese-whaling-the-saga-continues">enormous cost</a> of the program.</p>
<h2>Will Australia oppose it again?</h2>
<p>When he was opposition leader, Tony Abbott <a href="http://www.theage.com.au/national/abbott-rejects-whaling-legal-bid-20100111-m2oe.html">said</a> that a Coalition government would not take Japan to the ICJ to challenge its scientific whaling hunt. However, he did not oppose the Rudd government’s decision to begin the proceedings. </p>
<p>When the ruling was handed down, Mr Abbott, who had become prime minister in the meantime, chose <a href="http://www.smh.com.au/federal-politics/political-opinion/tony-abbotts-caution-has-let-japanese-whaling-off-the-hook-20140710-3bp7p.html">not to capitalise</a> on the judgment by pressing Japan to phase out lethal whaling altogether. This amounted to a green light for Japan to revamp its plans. </p>
<p>Yet the Abbott government, like its predecessor, is right to resist calls to enforce Australian laws against whaling in Antarctica, given Antarctica’s <a href="http://www.abc.net.au/news/2014-01-07/rothwell-a-lot-more-is-at-stake-than-just-whaling/5187542">special status</a>.</p>
<p>There is sure to be continued wrangling within the IWC on any new Antarctic whaling plans by Japan. If Japan does go ahead with a new hunt that is at odds with the ICJ’s ruling, the pressure will be back on the Abbott government to come up with an effective response. All options will need to be kept on the table, including a possible reactivation of the case in the ICJ. </p>
<p>Japan may yet devise a plan that abides by the court’s ruling. Yet even it if doesn’t, given Mr Abbott’s reluctance to press home Australia’s advantage back in March, it seems unlikely the issue will go all the way to The Hague again.</p><img src="https://counter.theconversation.com/content/31351/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Stephens receives funding from the Australian Research Council. He has provided advice to the International Fund for Animal Welfare in relation to whale conservation.</span></em></p>Japan is reportedly set to release plans to resume killing whales in the Southern Ocean in the 2015-16 season. It seems like a defiant move, coming just six months after the International Court of Justice…Tim Stephens, ARC Future Fellow, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/294162014-07-18T13:13:14Z2014-07-18T13:13:14ZExplainer: international law and flight MH17<p>As the events surrounding the crash of Malaysia Airlines Flight MH17 over Ukraine become clearer, more and more voices are claiming the plane may have been shot down by pro-Russian separatists in eastern Ukraine. </p>
<p>The Ukrainian president <a href="http://www.bbc.co.uk/news/world-europe-28353791">Petro Poroshenko</a> described the crash as an act of “terrorism”, while Vladimir Putin is <a href="http://talkingpointsmemo.com/news/putin-ukraine-malaysian-plane-crash">reported to have said</a> that “the state over whose territory this occurred bears responsibility for this awful tragedy”. </p>
<p>For her part, former US secretary of state <a href="http://www.theguardian.com/world/2014/jul/18/mh17-hillary-clinton-says-russian-backed-rebels-likely-shot-down-plane">Hillary Clinton</a> opined that the catastrophe could have grave consequences for Russia should it turn out that they were involved in supplying equipment used to attack the plane. </p>
<h2>What now?</h2>
<p>Legally speaking, we are still at an extremely early stage. Once it is established exactly how the plane was brought down, the next step will be to establish who bears responsibility for the crash, and how (and by whom) they will be punished.</p>
<p>States are obliged to punish those responsible. The first steps to investigate the causes and effects of the plane crash have been taken and Ukraine has asked the Netherlands for assistance in this task – but the possible responses using international legal structures are yet to be decided.</p>
<p><a href="http://www.baltictimes.com/news/articles/35162/">Ukraine’s prime minister suggested</a> that the International Criminal Court (ICC) in the Hague, established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, should look into the matter. However, it is in fact fairly unlikely that the ICC will get involved.</p>
<h2>Bad timing</h2>
<p>On April 17 2014, the Ukrainian government (which is signatory to the <a href="http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">Rome Treaty</a> but has not ratified it) <a href="http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/pe-ongoing/ukraine/Pages/ukraine.aspx">lodged a declaration</a> under Article 12(3) of the ICC’s statute, accepting the ICC’s jurisdiction over alleged crimes committed in its territory.</p>
<p>But that declaration specified only the time frame from November 21 2013 to February 22 2014, when Ukraine’s former president Viktor Yanukovych was <a href="http://www.bbc.co.uk/news/world-europe-26304842">ousted</a> amid civil unrest. That means the plane crash would fall outside the declaration’s time frame. The terms could be revisited by the Ukrainian government, but extending the time frame would also leave the pro-Ukrainian side subject to scrutiny by the court for any crimes committed in the course of the deteriorating conflict. </p>
<p>Meanwhile, under <a href="http://www.iclklamberg.com/Statute.htm#Article_13">Article 13(b)</a> of the Rome Statute, there is the possibility that the UN Security Council could refer the situation to the ICC Prosecutor – though Russia holds a vetoing power on the council, and would probably use it to block any such attempt. </p>
<h2>Jurisdiction</h2>
<p>We also have to remember that the crime of terrorism does not form part of the ICC’s jurisdiction, as the concept of “terrorism” is notoriously difficult to define. </p>
<p>Instead, the ICC’s core crimes are genocide, crimes against humanity, and war crimes (from 2017, this list will include the crime of aggression). To prove a crime against humanity, for example, the prosecution would have to prove that 1) the attack was aimed at any civilian population; 2) a state or organisational policy existed that led to the attack; 3) the specific attack formed part of a widespread and systematic attack; 4) a link between the accused and the attack exists; and 5) there was an awareness of the broader context of the attack. </p>
<p>While some commentators have suggested that the 9/11 plane crashes, for example, constituted a crime against humanity, if the shooting down of flight MH17 proved to be an accident rather than a policy, it would be very difficult indeed to prove the necessary elements of a crime against humanity. </p>
<p>If, however, a preliminary examination by the ICC suggested there were grounds to proceed and the neccessary admissibility and threshold criteria are met, it may still prove very difficult to apprehend the alleged perpetrators if they were to reside in Russia.</p>
<h2>Veto trouble</h2>
<p>Instead of ending up in front of the ICC, the MH17 disaster will probably become a question for the International Court of Justice, where disputes between states are considered. The court has previously considered rather similar cases: in 1988, for example, Iran brought a case against the US for the shooting down of <a href="http://www.csmonitor.com/World/Europe/2014/0717/From-the-Monitor-Archives-The-shooting-down-of-Iran-Air-Flight-655">Iran Air Flight 655</a> - though eventually the case was withdrawn. </p>
<p>By the same token, Malaysia could be entitled to bring before the court any state directly responsible for the downing of flight MH17, or for supplying the equipment used to do so.</p>
<p>Another body which could take legal action, of course, is the UN Security Council, tasked as it is with maintaining peace and stability. It could establish an independent commission of enquiry, though any resolution on behalf of the Security Council might well be vetoed by Russia. The UN General Assembly could also produce a recommendation in form of a resolution, but they are non-binding. </p>
<p>Ultimately, what happens next will depend on how the major players behave – especially Russia – once the facts of the crash have been more fully established.</p><img src="https://counter.theconversation.com/content/29416/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Melanie Klinkner 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>As the events surrounding the crash of Malaysia Airlines Flight MH17 over Ukraine become clearer, more and more voices are claiming the plane may have been shot down by pro-Russian separatists in eastern…Melanie Klinkner, Senior Lecturer In Law, Bournemouth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/212152013-12-06T03:09:39Z2013-12-06T03:09:39ZExplainer: Australia and Timor Leste in The Hague<figure><img src="https://images.theconversation.com/files/37077/original/cfp5nqw9-1386291937.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Timor Leste claims that a treaty with Australia on regulating the exploitation of petroleum and similar resources in the Timor Sea is now invalid.</span> <span class="attribution"><span class="source">EPA/Antonio Dasiparu</span></span></figcaption></figure><p>Several issues of international law arise from Timor Leste’s dispute with Australia over the negotiations of a <a href="http://www.dfat.gov.au/geo/timor-leste/fs_maritime_arrangements.html">2006 treaty</a> regulating the exploitation of petroleum and similar resources in the Timor Sea, which has now <a href="http://www.smh.com.au/federal-politics/political-news/east-timor-seeks-to-scrap-oil-treaty-with-australia-in-the-hague-over-spying-allegations-20131206-2yufv.html">reached The Hague</a>. </p>
<p>Timor Leste now asserts the treaty is invalid. Its argument is that the negotiations in 2004-05 leading to the treaty’s conclusion were not conducted in good faith because Australia engaged in spying during those negotiations.The case has been given prominence after Australian intelligence agencies <a href="http://www.theguardian.com/world/2013/dec/03/timor-leste-spy-witness-held-lawyers-office-raided-asio">raided the offices</a> of a lawyer and detained a whistleblower involved earlier this week.</p>
<h2>Legal issue #1</h2>
<p>The first legal issue to arise is whether international law prohibits a state from spying against another state. </p>
<p>For spying to be prohibited, and given the absence of a treaty prohibiting the behaviour, there needs to be both practice by the vast majority of states sustaining such a prohibition, as well as a conviction by states that the practice is unlawful. </p>
<p>The difficulty is that all states engage in spying. This observation is in itself sufficient to defeat the existence of the rule, although other relevant questions may be asked in this context. </p>
<p>For example, do states, when caught spying, try to justify their spying on the basis of a legal exception to the purported prohibition? If so, it would testify to the purported rule’s existence. This, however, is not borne out by practice. States generally assert instead that they do not comment on matters of national security. </p>
<p>Secondly, does state behaviour reveal a conviction that spying is unlawful, not only for other states but also by reference to their own behaviour? To be a rule of law, it must apply equally to all states in the community to which the rule purports to apply. </p>
<p>Clearly, all states engage in spying, so it is doubtful – for the purposes of international law (and by extension in terms of a state’s responsibility) – that spying is prohibited. </p>
<p>That being said, international law does prohibit interference in the domestic affairs of another state. For such interference to be prohibited, however, an element of coercion – which need not be physical – is required. </p>
<p>Whether Australia’s purported interference in the conduct of East Timor’s internal affairs crossed that threshold must be assessed on the facts.</p>
<h2>Legal issue #2</h2>
<p>The second legal issue – and perhaps the most interesting aspect of the case – is whether the treaty is invalid as a consequence of the negotiations leading to its conclusion being tainted by spying and, consequently, not having been conducted in good faith by Australia.</p>
<p>The principle that treaties must be negotiated in good faith is well established in international law. Whether a breach of this rule occurred does not depend on whether or not Australia’s alleged spying was unlawful. However, if there was a prohibited interference, it would perhaps be easier to establish that Australia lacked good faith in its conduct of negotiations. Timor would probably need to establish that the spying, as the alleged breach of good faith, was in legal terms sufficiently proximate or related to the negotiations. </p>
<p>The crucial point, however, is that if Australia through its alleged spying activities failed to negotiate in good faith, the breach of international law that has taken place is simply a breach of the fundamental obligation to negotiate in good faith. </p>
<p>This, however, does not necessarily mean that such a breach renders the 2006 treaty invalid. That is a separate question.</p>
<p>The <a href="http://www.austlii.edu.au/au/other/dfat/treaties/1974/2.html">Vienna Convention on the Law of Treaties</a>, mentioned as <a href="http://www.theage.com.au/comment/asio-raids-designed-to-show-timor-whos-boss-20131204-2yqxq.html">being relied upon</a> by Timor Leste in its claims against Australia, lists the grounds for treaty invalidity, and does so exhaustively. </p>
<p>Significantly, these grounds do not include a failure to negotiate in good faith. Nor indeed are unequal treaties included amongst the grounds for invalidity. These are treaties, generally concluded in the 19th century, in which the parties’ bargaining position was so unequal that they lacked in reciprocity. The doctrine of unequal treaties has never clearly been adopted as part of international law – although in this case, such behaviour might constitute a prohibited interference.</p>
<h2>How might the case play out?</h2>
<p>Of the grounds of invalidity present in the Vienna Convention and on the available facts, only one might possibly apply and even then it might be difficult to establish. Timor Leste would need to show that Australia has breached a rule of such importance for the international community as a whole that no alteration of or other departure from its prescriptions is permitted. The rule in question here is self-determination.</p>
<p>Timor Leste enjoys permanent sovereignty over natural resources, which results from self-determination. It could be alleged that Australia, in failing to conduct negotiations in good faith, deprived Timor Leste of that right. </p>
<p>However, such a claim would also rest on it being shown that permanent sovereignty is enjoyed over resources in the continental shelf, over which Timor has mere sovereign rights, but not sovereignty. If such a claim were successful, the treaty would indeed be invalid. </p>
<p>That said, if, as is perhaps more likely, it was merely established that Australia breached its obligation to negotiate the treaty in good faith, the treaty would not, as indicated above, be invalid on that basis alone. However, Australia would then be under an obligation to make reparation. This is the principal consequence of state responsibility. </p>
<p>Significantly, this obligation of reparation might (though not necessarily) in turn impact on the continued operation of the treaty. This is because the obligation of reparation requires the restoration of the situation to what it would have been but for the unlawful act. Arguably, it might even result in an obligation to renegotiate the treaty so as to bring about an instrument not tainted by the lack of good faith of one of the parties.</p>
<p>This might be a better for solution for Timor Leste than the mere invalidity of the treaty. In effect, it would yield the same result but also provide an opportunity for Timor Leste to try to tailor the new treaty more to its own advantage.</p><img src="https://counter.theconversation.com/content/21215/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Heathcote 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>Several issues of international law arise from Timor Leste’s dispute with Australia over the negotiations of a 2006 treaty regulating the exploitation of petroleum and similar resources in the Timor Sea…Sarah Heathcote, Senior Lecturer, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.