“Whose Justice Matters?”

ICC Justice Matters Campaign Photo ​© AP/Reporters/Karel Prinsloo

As part of its 10 ten year anniversary, the International Criminal Court has set up a multimedia exhibit campaign entitled “Justice Matters”.  The exhibit uses explicit and graphic photographs and video clips and its aim is to show that justice matters to the individuals and communities affected by the crimes under the Court’s jurisdiction and to show that it matters to the world. This got me thinking about the meaning of the term justice and whether it meant the same thing to most people, especially those affected by mass violence or conflict?

According to the great social scientist and African Scholar Mahmood Mamadani, in his article entitled “How Shall We Think of Mass Violence: Criminal or Political? Reflections on Nuremberg and CODESA”, he suggests that notion of justice as criminal justice has had the effect of being symbolic or performative. This in his opinion is victors’ justice and has largely shaped our perception of the term justice when it comes down to mass violence as we know it today. Mamdani draws attention to the new human rights paradigm which focuses its attention on individual criminal responsibility for mass atrocities rather than focusing on the main issues that drive the violence, whether political or otherwise. He distinguishes between victors justice, victims justice and at last posits a new framework of justice called survivors justice. In victors justice there is a clear victor who will emerge as powerful as was the case during the Second World War ending with Nuremberg.  Under victims justice there is no clear perpetrator as both victim and perpetrator exchange roles blaming each other during the ongoing conflict, as is often the case in during civil wars such as in Rwanda where both Hutu and Tutsi blamed each other, often switching roles of victim and perpetrator. While, with survivors’ justice, victims transition into survivors as a result of political reform, such was the case in South Africa, with CODESA (Convention for a Democratic South Africa) where strategic multiparty talks were held and agreement was reached to end apartheid. Mamdani argues that there can be no single narrative in each given case and that each case should be determined accordingly.

Mahmood Mamdani 

I think we can learn a lot from Mamdani’s analysis which is a good vantage point to analyse the processes of justice in each given case. It makes one think out of the legal box, which is often confining. Similarly, aside from understanding the driving forces which propel individuals or states into conflicts, we should also re-evaluate the international justice process as it operates today. Since we have reduced justice to individual responsibility, as Mamdani puts it, shouldn’t we make sure that the processes which shape its development are effective: first to its victims, perpetrators and immediate community and then to the international community? As Howard Zehr, aptly puts it, “Justice is an act of liberation” It should work to liberate the victim from the offense and offender by making the offender feel accountable. In other words, by making him aware of what he has done to his victims while coming to a true realization of the harm he or she has inflicted upon another.  Zehr holds that the current justice paradigm only focuses on making sure that guilt is relieved through punishment of the offender rather than focus on the process as a whole and its outcomes, which in his view should be that of restoration and healing. Genuine accountability in Zehr’s words is giving the offender the opportunity to make things right, or to repair the damage with the victim and society. This cannot happen by only establishing the guilt of the offender only or by reducing the justice process to an impersonal adversarial battle where victim and offender are marginalized during the trial process.

The Kenyatta case shows that the International Criminal Court needs to reset it relations with Africa

Prof. Tom Zwart

Prof. G.J Alexander Knoops

In April the newly elected Kenyan President, Uhuru Kenyatta, was sworn in during a public ceremony in Nairobi. While many African states, as well as countries like China and Russia were represented at the highest level, Western states had deliberately sent only lower ranking officials. The reason was that President Kenyatta has been indicted by the International Criminal Court (ICC). He is accused of having committed crimes against humanity by playing a role in orchestrating the violence after the 2007 elections. 

This lowkey presence amounts to a denial of the presumption of innocence. After all, at this stage President Kenyatta is only a defendant and therefore entitled to be presumed innocent until proven guilty. By comparison, when the American President Bill Clinton was impeached for high crimes and misdemeanours in 1998, Western states did not scale down their contacts with the Administration, nor did they have to. Therefore, one cannot blame African observers for believing that a double standard is being applied here.   

The presidential elections in Kenya turned into a referendum on the ICC, which emerged with a bloody nose. The Court has undoubtedly itself contributed to this state of affairs. It had several means at its disposal to prevent this clash, but it proved unwilling to use them.

Firstly, President Museveni, who spoke during the inaugural, observed that the case against Kenyatta should have been dealt with at the national level. There is strong support for this position even at the Court itself. In a dissenting opinion to the decision to charge Kenyatta and his co-defendants, Judge Hans Peter Kaul indicated that the violence committed in 2007 did not amount to crimes against humanity. Therefore, the Court lacked jurisdiction to try the case, which instead should have been prosecuted before an ordinary Kenyan criminal court. The majority of the Pre-Trial Chamber, however, decided to continue with the case regardless. 

Secondly, highly charged cases like this, in which it is difficult to prove the facts and to determine who is most responsible, can best be settled with a plea deal. President Kenyatta could express regret for his failure to prevent loss of life after the 2007 elections, in exchange for the charges to be dropped. Although other international tribunals resort to plea-bargaining to facilitate reconciliation, the ICC has not yet done so, probably because it believes that it should be above such ‘horse-trading’. However, in the Kenyatta case, such an agreement would not only allow it to give Kenyatta a slap on the wrist, but also to invest in its standing in the region.

By not seizing these opportunities until now, the Court has done itself a disservice. Opposing the Court has become a way for Africans to assert their independence from the West, which is boosted by impressive growth figures and closer relations with China. During the ceremony President Museveni indicated that he too is losing patience with the Court. His critical remarks are a telling sign that the tide is turning. In 2003, he breathed life into the ICC by agreeing to refer the first much needed case to it. Now, the time has come to ‘reset’ the relationship between Africa and the ICC. This can be done by taking two important steps.

   

Firstly, as President Museveni rightly pointed out, the ICC is being driven by legalism, i.e. the idea that its work should be determined entirely by law without taking the political context on board. Interestingly, since the Rome Statute does not prescribe legalism, the decision not to engage in politics is by itself political. The idea that the Court operates on a strict diet of pure law is a myth, which is rightly met with scepticism in Africa. Therefore, Africans tend to see the ICC for what it is, a political actor, and they treat it that way. To maintain its legitimacy the Court should therefore acknowledge this political dimension to its work.

Secondly, in his inaugural address President Kenyatta made clear that no one country or group of countries should have control or monopoly on international institutions or the interpretation of treaties. The ICC does little to honour the African sense of justice, although the Rome Statute allows it to apply African criminal law notions like restorative justice, reconciliation, and peace as an integral part of justice, as well as respect for local culture. If the Court succeeds in showing that it takes these elements of African justice seriously, its legitimacy will increase, and so will the compliance with its rulings.

Uhuru Kenyatta (Left) shakes President Museveni hand at  President Kenyatta's Inauguration

President Kenyatta’s observations are reflected in an initiative, taken by legal academics form Africa and elsewhere, which is aimed at combining more respect for African justice on the part of the ICC with increased cooperation on the African side. It is important that both sides soon endorse this initiative, led by professors Laurence Juma from Rhodes University and Tom Zwart from Utrecht University, before irreparable damage occurs. 

Guest Post by Alexander Knoops & Tom Zwart

Alexander Knoops is a Professor of International Criminal Law at Utrecht University; Tom Zwart is a Professor of Human Rights at Utrecht University.        

Gender Gets a Raised Profile at the ICC

Besouda and Inder at Coalition Reception for the New ICC Prosecutor. Photo courtesy of CICC

What has caught my attention in recent months is that gender issues have been given a raised profile at the International Criminal Court. Since Fatou Bensouda’s rise to chief prosecutor, the OTP has started placing important emphasis on addressing and prosecuting sexual and gender based crimes. It has also appointed a new gender advisor, Brigid Inder. Inder brings with her years of experience in gender related violence. She is mostly well known through the human rights organization Women’s Initiatives for Gender Justice, which regularly publishes gender reports on situations of armed conflict. The organization advocates for the accountability of gender crimes through the International Criminal Court.

Inder has stressed the crucial importance of prosecuting gender crimes with the help of the ICC. In a recent address to the Court she made clear that the OTP would need to alter its strategy to enhance its effectiveness. Part of this strategy means undertaking investigations and prosecutions into gender-based crimes and the appointment of more gender analysts and specialists within the organ itself. What I very much like about her approach, is her recognition and involvement of experienced professionals at the Court who understand and who have dealt with gender related crimes. The ‘cherry on the cake’, would be if such professionals were trained or recruited on the basis of their cultural knowledge as well, given the contexts in which they operate. Her approach in accessing women and victims through the use of local organisations, credible enough to understand the issues at play, is to be commended. Such an investment is important, as issues of rape and sexual violence, remain often of the time, a private matter and generally unspoken of, within many African communities. Understanding the culture and taboos at play are therefore essential if victims are to speak out. So in other words, building up the support of local organizations, equipped with adequate cultural knowledge is a step in the right direction if the Court is to increase effectiveness and legitimacy in each of its situation countries.

Separate to this, I’m also wondering if this sudden focus on gender is somehow related to the prosecution of Simone Gbagbo, the wife of former President Laurent Gbagbo now at the International Court? The case is attention grabbing because she is the first woman to be prosecuted by the ICC. The counts against her include murder, rape and other forms of sexual violence  and persecution as crimes against humanity, committed in Cote d Ivoire between December 2010 and April 2011. The attention grabbing part is that she is a woman firstly, and secondly that she is being held accountable for the crime of rape. The words 'woman accountable for rape' are almost in antithesis to each other and in most people's minds don't usually go together. You can refer to the arrest warrant here.

Congratulations to ASEAN on the adoption of its Human Rights Declaration

Cambodia's PM Hun Sen, left, with ASEAN Secretary-General Surin Pitsuwan after the ceremony for the adoption of the ASEAN Human Rights Declaration, during the ASEAN Summit in Phnom Penh, November 18, 2012.

Compliments

On 18 November 2012, the ASEAN Heads of State and Government adopted the ASEAN Human Rights Declaration. This Declaration, which is the first comprehensive human rights document issued by ASEAN, displays an authentic regional vision on the promotion and protection of human rights.

The Presidency of ASEAN, held by Cambodia, which brought the process to a successful completion, and the ASEAN Intergovernmental Commission on Human Rights, which took care of much of the drafting, need to be commended for their stewardship of the process and the quality of its outcome. Since the cultures, political systems, and therefore the human rights ambitions of the member states of ASEAN are very different, the fact that they were able to produce such a consistent and convincing document deserves a compliment.

ASEAN’s efforts become even more commendable when one takes into account that the principle of non-interference has always been a pillar of the cooperation within ASEAN and an important part of its success. During the early years, states were focusing on internal problems and they were not eager, therefore, to take on each other. At a later stage the organisation accommodated the accession of a number of states with radically different political systems. This could work only because the members adopted a ‘live and let live’ attitude towards each other. ASEAN has now shown that it is willing to sacrifice a principle which has contributed much to the success of the organisation by turning human rights into an issue of common concern.

Increasing the Jurisdiction of the African Court of Justice and Human Rights

 

Since the decision by the African Union in July of this year to propose adopting a Draft Protocol increasing the jurisdiction of the African Court to try international crimes; there has been a whole lot of debate and criticism surrounding the issue. It’s been said that this is the African Union’s (AU) way of getting back at the International Criminal Court (ICC), given their already troubled relationship. Also there has been talk about the ‘the hurried process’ surrounding the Draft Protocol; the assumption that Africans want to be  tried by an African Court only; the subject matter of the courts jurisdiction; resource and financing issues; lack of experienced personnel and judges; insufficient capabilities and manpower in dealing with large scale, future investigations; incompatible mandates between the human rights section of the African court and its international criminal law section and the list goes on…  For more information on some of these criticisms you can read Max du Plessis’s recent blog post on Ejiltalk and Frans Viljoen’s post on AfricLaw.

While there are, indeed an array of concerns and questions, academics are rarely commenting on the positives that increased jurisdiction of the African Court may bring to the table for Africa and the international community. The problem is that we focus so much on the negatives, that we forget that there are reasons why such a Court may be beneficial. My own view on the issue is that an African Court could benefit Africa and the international community for a myriad of reasons, some of them include:

Inheriting a New Perspective – Women and the Land of South Africa

South Africa’s distressing history of segregation and problematic implementation of Human Rights standards, unfortunately, still peeking its way into the present day. Gender Rights in regards to Land Laws is especially one of the areas of the law in which these violations are being recognized. If South Africa wants to become a country sensitive to International Human Rights Norms, it must be realized by everyone that this is a feat much easier said than done, especially with South African customary law – laws built of customs and practices of the indigenous peoples - being as complicated and intricate as it is. Legal Pluralism is one of South Africa’s biggest obstacles to overcome; colonialism’s brought regulations translated from both Roman-Dutch law and English common law, which had to mix with a huge number of indigenous or customary laws already in place. Integration of these rules was not a smooth process; the settlers of 1652 from Europe, namely the Dutch East India Company that recognized the Roman-Dutch Law as the official law of the land - at first ignored the native laws of the tribes, then tolerated them after the second British occupation in 1806 when it was stated that there should be no interference with the native laws of the country, and eventually recognized them in the Interim Constitution of 1993. If South Africa wants to accomplish a true pluralistic nature to the law, and a multicultural nature of the society, it is necessary for everyone within that society to become more sensitive to the various cultural practices around them and to use a more bottom-up approach for implementing the changes.

Recognizing Customary Law can only be done if it is understood in itself, which is very difficult to do with the vast number of different regulations and customs followed by the different tribes and native communities. Land Tenure alone is two fold; there are the Official Customary Laws, which are the explicit laws about how inheritance of Land occurs and what procedures are to be followed, and the Living Version of Customary Law, which is the way in which the courts have interpreted and applied the provisions in real cases. The problem resides in the fact that there is a great disparity as to how the laws are applied; the lower courts have a tendency to take social practices and changes into account more so than the higher courts, which have a tendency to strictly apply the original customary rules, even though the laws weren’t in fact that strict at all.

Primogeniture – the preference for senior males as heirs to inherit land – is a dominating feature of inheritance and tenure law within the customary system, and is something which many indigenous tribes still follow, regardless of the new laws put in place. It was codified in Article 23 of the very controversial Black Administration Act 1927, a major piece of Apartheid legislation codifying the segregationist character of South African society. The basic idea behind this rule, under Official Customary Law, is that property of a family head, when deceased, is passed onto the heir, usually the oldest of the sons in the first house. In a Zulu household, “power is inherited by men but transmitted through women”; in polygamous marriages, if the husband were to die, then the property is to be distributed accordingly amongst the sons of the houses that are identified by the wives: the first wife of the “great house” (indlunkulu), the right-hand house (qadi) and the left-hand house (ikhohlwa); determining the seniority of the wives is usually on the basis of marriage order. In a Swazi household, the senior wife is chosen by the family, which helps identify who the heir should be – usually her oldest son. In almost every tribal community household, it is very difficult to say that there is no male heir to the deceased’s estate, due to the fact that an heir will eventually be found along the bloodline -  succession passes onto the deceased’s father, or the brothers, or the descendants in order of seniority.  Sometimes, succession will even be passed onto grandchildren, and then if failing the oldest grandchild, will then follow through the second oldest of the family line of males until an heir can be found. In the event that no heir can be found, however, the traditional leader of the community will then take hold of the estate, but is under the duty to use the estate to maintain the surviving dependants – women included. I have simplified these customs as much as I can, but the basic idea is that the heir to the estate is usually always a male – women seem to be avoided completely. However, women are used by many communities as a way in determining the heirs, for it is the women who are the leaders of the households, especially in polygamous marriages.

Fatou Bensouda New Prosecutor of the ICC

Photo Courtesy of ICC

Fatou Bensouda was officially instated as new Prosecutor of the International Criminal Court on 15^th June 2012. She brings to the table her years of national and international experience, first serving as solicitor general of Gambia, and then she broadened her experience internationally by serving as legal advisor and trial attorney at the International Criminal Tribunal for Rwanda (ICTR) and thereafter as Deputy Prosecutor at the International Criminal Court. There are many proponents who say that Bensouda could redeem the muddied reputation of her office left behind by her predecessor especially in the context of the Africa and the African Union. But in a recent interview with Radio Netherlands Worldwide she stressed that she was elected to the position not because she was an African but because of her accomplished track record.

Bensouda doesn’t deny her African heritage and makes clear that she is installed as Prosecutor of the International Criminal Court to fulfill her legal mandate given the speculations that she will be better equipped to deal with the Africans then her predecessor has. She uses the motto: “The ICC for African Victims” and already her strategy is to relate the current prosecutions to African victims. She also places a lot of emphasis on African participation outside and within the Court. She states that Africa is currently the most represented region at the Court, 28% of the judges are African and three African States (Uganda, DRC and CAR) have referred the situations on their territory to the Court. In other words she has highlighted Africa’s commitment to international justice in a more positive manner.

Whether Bensouda will bring change to the strategy adopted by her predecessor, Ocampo, only time will tell. One thing is for certain she does understand African custom, culture and politics more, and is therefore more likely to engage more meaningfully with African leaders and hopefully more sensitively with next prosecution she undertakes in Africa.

For more information on Bensouda’s swearing in ceremony visit:

http://www.icc-cpi.int/NR/exeres/C0AEA6EE-B485-4BE3-BF61-9D404163E119.htm

 Posted By Ingrid Roestenburg-Morgan 

Lubanga Judgment: New Case Law on Child Soldiers

Thomas Lubanga at the ICC    Photo Courtesy of Evert Jan Daniels

This year the International Criminal Court celebrates its 10^th anniversary since opening its doors in Hague in 2002. This year is not only the anniversary of the Court but also the first time that the Court has handed down a conviction to date. March of this year saw the founder and leader of the rebel group Union des Patriotes Congolaise (UPC), Thomas Lubanga Dyilo found guilty on charges of conscription and enlistment of children under the age of 15 by using them to participate actively in the ongoing armed conflict in Ituri. This is an important Judgment for the International Criminal Court as it is not only authoritative at the international level, but it is the first judgment which solely relates to the use of child soldiers.

The crime of recruitment and use of children under the age 15 years as a war crime has so far not been relevant under international criminal law. The judgment is relevant since according to the Trial Chamber it extends to any armed group within the context of a non-international armed conflict and within the ambit of international humanitarian law.

Kai Ambos has already written a paper dealing with an analysis of the legal issues emanating from the trial. His paper entitled “The first judgment of the International Criminal Court (Prosecutor v Lubanga): A Comprehensive Analysis of the Legal Issues” deals more in depth with the legal issues of the judgment.  He pays special attention to the definitional elements of the crime as handed down by the Chamber and affirms the Chambers findings that the verbs ‘conscripting’, ‘enlisting’ and ‘using’ under Art. 8(2) (e) (vii) reflect separate offences and thus should stand on their own.  

I found the topic dealing with the problem of consent which he also addresses to be particularly interesting. Ambos holds that while the definition of ‘enlistment’ implies voluntary recruitment as opposed to the term ‘conscripting’ which implies compulsory recruitment as decided by the Chamber; the autonomous decision of a child who voluntarily decides to join an armed force may negate the actus reus of the offence in question. So in other words, the objective element of the crime coupled with the intent of the accused and which in turn produces criminal liability for the accused is brought into question when a child voluntarily joins an armed group. What the Chamber has done in Lubanga to overcome this problem is to treat both offences as equal. In other words, the Chamber has held that the offences of ‘conscripting’ and ‘enlisting’ are committed at the moment a child under the age of 15 is enrolled or joins an armed force or group, with or without compulsion” (Para. 618 Lubanga Judgment).

What Ambos argues is that by doing so the Chamber has overlooked the autonomy of the potential victim which may in fact violate the protection of his/her personal autonomy and free will. What this leads to is that if a child agrees to voluntarily join an armed group, a definitional element of the actus reus is absent and the offence in question cannot be fulfilled because the prosecution cannot show or prove this element of the relevant offence in question. Such voluntary consent could further provide a valid defence to enlistment.

Related to the issue of voluntariness of consent is still the concern that culture also has a role to play and should have also been considered by the Chamber during the evaluation of evidence. In my opinion, and as I have addressed before in a previous post dealing with child soldiers in the Sierra Leonean context, the questions that need to be asked are: Was the offence a crime under customary international law of the DRC? Is it perceived as a crime in the DRC and has it been criminalized as such? Has this practice formed part of the culture of the country and if so could the accused’s guilt be mitigated?

As in the case of Sierra Leone, the protection of children under Congolese national law has been both scarce and ineffective. Despite the fact that the DRC ratified the Optional Protocol to the Convention of the Rights of the Child on the involvement of children in armed conflict in 2001 and set the voluntary age for recruitment at 18, the practice of child recruitment continues to date even though under its 2006 Constitution the DRC makes clear that any person under the age of 18 is a child. The Constitution lacks in that it does not specifically prohibit the recruitment and use of children. Furthermore, although DRC is a member to the Rome Statute, no implementing legislation has been enacted to bring its national laws in line with the Rome Statute. It was only in 2009 that a Child Protection Code was enacted prohibiting the recruitment and use of children, by armed forces, groups or the police. But still, no definition has been provided for the terms ‘recruitment’ and ‘use’ under the Code, making it difficult to understand just exactly these terms should mean within the Congolese context. For information and a better understanding of DRC national laws and ratification to international treaties dealing with the rights of the child read the OPAC Shadow Report of 2011.

Photo courtesy of Unicef

In other words how to prosecute those responsible for a crime if the crime is not perceived as a crime by the offender or victim? By perceived I mean that both persons should feel morally convicted that something illegal is taking place and should know this. Even if it can be shown that the offender knew this doesn’t imply a duty on his part to refrain from a practice which might not be perceived as harmful by him in the first place. As I mentioned in one of my older blog posts there is no universal qualification for the concept of a child and a distinction should always be drawn between the ‘child in law’ and ‘child in culture.’ And even though taking these factors into account will not change the crime in question as set out under the Rome Statute, what it can do is provide for mitigation during punishment and a better sentence for offenders who can prove that their cultural beliefs or practices were at odds with the international understanding of the crime in question.

Posted by Ingrid Roestenburg-Morgan

  

An Ivorian Solution to an Ivorian Problem

Laurent Gbagbo is another African in the dock at the International Criminal Court. The former President faces four counts of crimes against humanity, including murder and rape, in relation to the post election violence of 2010. Although, the International Court focused its investigations on the crimes ensuing from the post election violence, the Court recently extended its mandate to include crimes from as far back as 2002, which had originally spilt the country into two separate governments. A brief history on the conflict leading up to the Gbagbo’s trial at the International Criminal Court is as follows. Since 2002 the Northern part of the country has since been led by Allassane Quattara and the Southern part by Laurent Gbagbo. Elections eventually held in 2010 made the political climate in Cote‘d Ivoire even more volatile given the deep rifts already prevalent between the North and the South. So, it came as no surprise that the call for elections by the international community merely acted as a catalyst for the violence which ensued with Gbagbo refusing to step down from his presidential post.

The situation was even further complicated by the fact that the country’s electoral commission  declared Quattara as the rightful winner, while the body actually responsible for announcing the winner, the constitutional council held that Gbagbo had won the election. I would have expected at this stage that both parties be brought before the ICC, since supporters from both camps were involved in the violence which ensued? Gbagbo refusing to step down was then supposedly captured by French forces after a military assault on his residence. That version of capture was quickly changed to the version that Northern rebel forces had effected capture of the ex-President after which time he was transferred to the ICC.

How do French interests play a role in all of this? Well, Quattara for one has been projected as having the backing of most Western countries, with mainly France and the US backing his presidency. This has led many commentators to conclude that Quattara has been more affable to Western influence.  Quattara is also former deputy managing director of the U.S dominated international monetary fund and criticism has come to bear against him for being a puppet of the West and compromising Ivorian economic interests. Gbagbo on the other hand was known as being more interested in establishing ties beyond the West, mainly with Russia. What does Cote‘d Ivoire has to offer to these countries you might say? Well for one they are a leading exporter of cocoa, coffee and vast array of minerals. Furthermore, offshore oil deposits have been recently discovered making trade with the country even more desirable. Infact, Ivory Coast boasts an oil production of currently 60000 barrels a day and it estimated to reach 200000 barrels a day by 2020. So economically countries that share good trade relations with Ivory Coast and its President will certainly benefit. France, being the frontrunner.

The ‘Give and Take’ of Complementarity

The recent acquittal of Lord’s Resistance Army rebel, Thomas Kwoyelo by Uganda’s Constitutional Court has certainly sparked my interest in the case. Kwoyelo has been charged with 12 breaches of the Geneva Conventions, which has included willful killing, taking of hostages and extensive destruction of property. The Constitutional Court has ruled that the former rebel leader was entitled to receive amnesty under the Ugandan Amnesty Act of 2000. This Act has been a positive step since its promulgation. It is estimated that the Act has demobilized around 22,000 individual’s post proclamation. What happens are that LRA members renounce and abandon their involvement in the ongoing armed rebellion, if they are to receive amnesty. Kwoyelo invoked this right under the Act but did not receive a response to his application. The case was then subsequently referred to the Constitutional Court which eventually decided that the case should be halted on the grounds that Kwoyelo was treated unfairly under the Act.

This case has certainly challenged the applicability and legal framework within which Uganda’s amnesty laws operate; and on an international level, the ICC’s principle of complementarity. Once rebels who subscribe to the Act, are granted amnesty they will face a ritual called mato oput, which is a traditional Acholi justice system practiced in Uganda. The ritual of mato oput was given centre stage as being the most appropriate to solve the current tensions between the LRA and its victims during the peace negotiations in Juba. For those of you, who might not be aware of what the ritual involves, let me briefly shed some light on it. Mato oput is “a traditional reconciliation process for a killing. It aims to promote forgiveness, healing, restoration of broken relations and ultimately greater unity and harmony between the clans of the victim and perpetrator. Compensation is usually provided to the victim as a form of satisfaction. The ritual generally involves the drinking of a bitter root mixed with local beer, also known as kwete, or water, followed by a ritual slaughtering of a goat or sheep in an exchange of food.

Reactions to the Kwoyelo ruling, has sparked mixed responses within Uganda itself. The Public prosecutor has appealed the Constitutional Court’s decision to the Supreme Court on the basis that it is in conflict with Uganda’s national and international human rights obligations. It is now left to the Supreme Court to decide in the final instance, if the case should continue.  Acholi religious leaders have praised the ruling citing that Kwoyelo deserves amnesty because it will pave the way for other LRA members who are involved in the ongoing conflict to abandon their involvement in the rebellion and peacefully reintegrate back into their communities.

Masterclass with Professor Marti Koskenniemi

'The Politics of Human Rights’

On 14 November 2011, Professor of International Law at the University of Helsinki Marti Koskenniemi engaged with five junior members of the School of Human Rights in a ‘Politics of Human Rights’ Masterclass.  Laura Henderson, Ingrid Leijten, Gustavo Arosemena, Robert Weaver and Abel Knottnerus challenged the current Treaty of Utrecht Visiting Professor on five propositions selected from his article ‘The Effects of Rights on Political Culture’. Under the chairmanship of Professor Tom Zwart the afternoon showed an elusive discussion on the foundations of human rights.

It is not every day that law students, scholars or professionals question the footings of their study and practice: what is the meaning of rights? Many might actually feel quite uncomfortable to engage in such discussions.  How to think of a house, when debating its building stones? What is left of human rights, if one starts to challenge the meaning of rights itself? Perhaps partly because of these concerns, many scholars prefer to elaborate on the roof tiles or the colours of the curtains, but not Martii Koskenniemi. While calling jurisprudence a ‘disaster’ and technicalities boring, he brought his attentively listening public back to the foundations of human rights.

Twelve years ago, Koskenniemi had claimed in Alston’s ‘The European Union and Human Rights’ that Ronald Dworkin’s famous thesis of rights as trumps was false. Rights could never be a-historical and universal. However, nobody tended to disagree with his argument. Of course, there is always a gray zone in which politics plays a major role. Would this mean that Koskenniemi shot a dead horse, a building stone which nobody uses anymore? No, because the rights discourse, according Koskenniemi, remains to hold a separate, a relatively absolute position in relation to other legal language: ‘I attack those people that believe that rights are the instrument, the technique to protect the most important values of social goods (..) It is that ‘something’ which makes rights special that I address’. We could describe that ‘something’ as the comfort of living in a house.  

What should we do with the house? We cannot just sleep under the stars, can we? Of course not, all participants of the Masterclass appeared to agree on this.  Acknowledging its politics is not to denounce the importance of human rights. This brings us back to the colour of the curtains. Can we find a way to decide which fabric to take? It was on this question, on the criteria to distinguish between a genuine claim to rights and an improper claim to rights that the discussion evolved.

Breakfast Meeting with Courtenay Griffiths QC

The Netherlands School of Human Rights Research hosted its second breakfast meeting on Monday the 31st of October 2011. In a riveting follow-up to the first guest speaker David Crane, former Prosecutor of the Special Court of Sierra Leone, Courtenay Griffiths Defence Counsel for Charles Taylor, defended the assertions made in his closing argument that the Taylor Case was politically motivated and that international criminal law a product of political machinations. The breakfast provided a great platform for academic debate and discussion, and interns were 'hanging on the lips' of Mr. Griffiths, who quite eloquently defended his position. 

Future meetings will see the likes of prominent legal scholars, judges, and practioners. It will offer interns a unique and fantastic opportunity to supplement their practical training with sound theoretical legal knowledge and practical advice whilst help keeping them abreast with the latest developments in international criminal law. It also provides excellent networking opportunities, since interns get one on one time with guest speakers.

The meetings are convened by Professor Tom Zwart, who is the Director of the Netherlands School of Human Rights Research, and organised by myself. These informative sessions are held at the Eden Babylon Hotel in The Hague, directly across from the Central Station and are convened on each allocated day from starting at 8.00 am. Breakfast is free of charge so that should be stimulus enough to sign up :-) For more information interns should contact the heads of their respective internship units or if all else fails drop me a mail.

Posted by Ingrid Roestenburg-Morgan

African Union (finally?) recognizes new Libyan leadership

On 21 September 2011, the Chairperson of the African Union (AU) H.E. Teodoro Obiang Nguema Mbasogo, President of Equatorial Guinea, announced the recognition of the National Transitional Council (NTC) ‘as the representative of the Libyan people as they form an all-inclusive transitional government that will occupy the Libyan seat at the AU’. Although being rather ambiguous in its wording – as it speaks of the NTC as an ‘all inclusive transitional government’, a status which the NTC can not claim to fulfill – this statement should be seen as a major alteration in the position of the AU and as a strong leg up for the NTC. Especially since South Africa expressed its support for the decision of the AU. Prior to this statement, the AU refused by all means to recognize the NTC while encouraging ‘the Libyan stakeholders to form an all-inclusive transitional government that would work towards the promotion of national unity, reconciliation and democracy’.

During the course of the conflict in Libya the AU has, under the leadership of South African President Jacob Zuma, continuously called for a cease-fire and mediation under African guidance. Simultaneously, the body expressed multiple concerns about the implementation of United Nations Security Council (UNSC) resolution 1973. According to the AU the massive airstrikes NATO launched on Libyan soils would be counterproductive. As Zuma stated in June of this year: ‘These actions undermine the efforts of the AU in finding solutions to the problems facing its member states’. By the time Tripoli had been conquered by the rebels and all five veto-powers had recognized the NTC, the AU held on to the belief that the future for Libya would lie in a truly all-inclusive transitional government, including supporters of Gaddafi’s regime. This position provoked some fierce criticism from voices within and outside the African community. In essence, two strains of criticism can be identified.

Commander and Chief: Cultural Constraints Related to Command Responsibility

The trial of Jean Pierre Bemba, at the International Criminal Court raises important issues related to the theory of command responsibility. This is the first case at the International Criminal Court which focuses on the doctrine to establish the criminal responsibility of an accused in a case before the Court. On face value, the facts of the Prosecutions case reveal that Mr. Bemba being the President of the Movement for the Liberation of Congo (MLC) and commander in chief of its military wing, the Arme´e de Liberation du Congo (ALC)., had a particular relationship to the troops directly involved in the commission of the crimes in the Central African Republic (CAR) during 2002 and 2003. In short, through a chain of command he was directly responsible for the crimes committed by his troops in the region. The basis of this type of responsibility is codified under Article 28 of the Rome Statute, which holds that military commanders can be held individually accountable for the crimes of their troops if they fail to exercise effective control over those under their command, regardless of whether or not they are connected to the crime in question. Article 28 goes even further to distinguish between military and non-military commanders complicating the rule even further.

China No Longer Shy on Human Rights

Professor Tom Zwart recently visited China, where he had the opportunity to address the Human Rights situation and the progress made by China since its ratification of the Universal Declaration of Human Rights. In an interview on Chinese national television's CNTV's Dialogue, Professor Zwart addressed the possibility of bridging the divide between the universality of human rights to Chinese culture and society. For more on this interview visit the link below:

http://english.cntv.cn/program/dialogue/20110923/117638.shtml#.ToBjVeu5Ufg.facebook

Posted by Ingrid Roestenburg-Morgan

Child Soldiers: Cultural Challenges

This topic has been one I’ve wanted to explore for a while now.  This is the opportune time to do so and get some insights on the matter. It relates to the dilemma international law and more importantly, the International Criminal Court will likely be facing in the future, with regard to the issue of child soldiering. In particular, I am referring to the cultural perception of the crime as viewed from a non-Western interpretation.

There are various factors which may be seen as obstacles to the universal qualification of the concept ‘child’ soldier for one, and the implications which attach thereto under international criminal law. According to the famous American anthropologist and lawyer David Rosen, in his article entitled Child Soldiers, International Humanitarian Law and the Globalisation of Childhood an impasse is reached in understanding the concept of childhood.  I refer to a modern interpretation of the concept as understood from an international perspective. The current interpretation under international humanitarian, criminal and human rights law posits a single, universal understanding of the concept.

A distinction must be drawn between ‘a child in culture’ and ‘a child in law’. The latter definition holds fast to the position that children falling under the age category of 18 and who are recruited into or are attached to any regular or irregular armed group qualifies as a child soldier. This is referred to as the straight 18 position and exemplifies the view that the recruitment or deployment of any individual under the age of 18 is criminally punishable under international law. There is clearly an expected difference when you examine the concept ‘child in culture’. I will use the case of child soldiering in Sierra Leone as an example. The Poro and Sande culture in Sierra Leone holds that ‘to be a warrior is to be an adult’ and part of this culture involves initiation ceremonies where boys between the ages of ten or eleven, are kidnapped and taken into seclusion into the bush where they are prepared for the ways of adulthood.  This forms a distinct marker for their transition into adulthood.

The African Charter on Human and Peoples’ Rights: Developing an Effective Framework

A recent study by the American Journal of Public Health found that an average of 48 women and girls are raped every hour in the Democratic Republic of the Congo.  According to the study, within a 12 month period, 400,000 females were raped during the ongoing civil war that has crippled the country.  Without a doubt, the call for human rights enforcement in Africa rings as loudly as ever. The perennial question debated by human rights scholars is whether Africa can effectively answer that call?  I believe that the African Charter on Human and Peoples’ Rights answers the call for standards that will improve human rights conditions in Africa. However, structural defects within the judicial institutions of the African Charter are limiting the Charter’s effectiveness and leaving the legitimacy of its judicial institutions in question.

New Book by Professor Bas de Gaay Fortman

Professor Bas de Gaay Fortman, has a new book which will be out in bookstores on May 19th. De Gaay Fortman is the Emeritus Chair in Political Economy of the International Institute of Social Studies of Erasmus University Rotterdam, and Professor of Political Economy of Human Rights at Utrecht University Law School, in the Netherlands. His book is entitled 'Political Economy of Human Rights: Rights, Realities and Realisation.' Those of you who are interested in human rights, political economy, law and conflict studies may find this an interesting read. Please see the excerpt below for a glimpse into the book and for a more detailed description of the book click here to see the flyer. Happy Reading!

Excerpt

Political Economy of Human Rights: Rights, Realities and Realization (Routledge: London/New York: 2011) is the first complete text covering and discussing human rights from a political economy perspective. Confronting international human rights with both global and local economic-political realities, this book entails a full shake-up of the UN led mission for human rights and the national strategies linked to it. It argues a shift in the allocation of human and financial resources from the quasi-legal international level to the national and local environments in which these rights have to be realised. Numerous issues connected to this main line of thought are presented and analysed from a political economy focus.

Posted by Ingrid Roestenburg-Morgan