{"id":1717,"date":"2016-11-07T21:00:22","date_gmt":"2016-11-07T20:00:22","guid":{"rendered":"http:\/\/michaelgkarnavas.net\/blog\/?p=1717"},"modified":"2016-11-07T22:13:43","modified_gmt":"2016-11-07T21:13:43","slug":"investigating-non-african-situations","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2016\/11\/07\/investigating-non-african-situations\/","title":{"rendered":"Will launching investigations into non-African situations stem the exodus of African states from the ICC?"},"content":{"rendered":"

<\/div><\/p>\n

There is no truth. There is only perception.<\/p>
\n

\u2015 Gustave Flaubert<\/p><\/blockquote>\n

\"perception1\"<\/a>The truth is normally what one perceives it to be. \u00a0At least, that is what I have found in trying cases before juries.\u00a0 In fact, a trial before a jury is nothing short of a perception game; with each side marshalling the facts, crafting the narrative, and arranging the composition of events from jury selection to closing arguments, with the sole purpose of persuading the audience of this human drama as to what it <\/em>should perceive the <\/em>truth to be.\u00a0 Prosecutors may argue that they are after the truth, but I have yet to meet a prosecutor who, after getting his derri\u00e8re publicly spanked and being abjectly rejected with a not guilty verdict, will congratulate the jury for finding the<\/em> truth and thus reaching a just<\/em> verdict.\u00a0 The point I am driving at is that perception is often viewed as the truth, never mind whether the objective facts may show otherwise to a dispassionate observer.<\/p>\n

If the truth is lost in the scrum of the perception game, should the International Criminal Court (ICC) care about its image?\u00a0 Yes, it should.<\/p>\n

After some 14 years, what does the ICC have to show? In tangibles, if completed cases are the sum of its accomplishments, very little. \u00a0If it were an IT startup, investors would have given up years ago. \u00a0No bang for the buck with this enterprise. \u00a0Time to move on to other innovative ideas. \u00a0Does this sound familiar? \u00a0Alternative (complementary, to put it charitably) courts to the ICC are afoot<\/a><\/u>.(( According to the Mechanism for International Criminal Tribunals (MICT) President Theodor Meron, the MICT stands as a new model \u2013 small, temporary, and more cost-effective. MICT press release, President Meron discusses MICT as a new model of international justice<\/a><\/em>, 20 September 2016.\u00a0 Professor Carsten Stahn in his article in EJIL: Talk!<\/em>, Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity<\/a><\/em>, 23 September 2016, seems to welcome such an approach in describing what he calls \u201cInternational justice 4D\u201d \u2013 \u201cdomestic, international, hybrid and regional\u201d levels to investigate and try international crimes. See also <\/em>my earlier post, The MICT model: panacea or chimera?<\/a><\/em>, discussing the new MICT model and the inequity of its legal aid policy.))<\/p>\n

Tangible results should not be confused with what the ICC has been doing, even if all it has done is less than laudable. \u00a0The Office of the Prosecutor (OTP) has been conducting preliminary examinations and investigations. \u00a0Intangible as these activities may be unless or until they result in charges, these activities are in no small measure significant deliverables deserving recognition.<\/p>\n

But if recent events are indicative of what is to come, there is reason to believe that the ICC is at the cusp of becoming a grand idea gone awry. \u00a0Why?<\/p>\n

Aside from the ICC\u2019s august new premises and all the hype and pretentions of what it stands for and all it will do in combating impunity, the ICC has squandered time, resources, and good will, while the OTP was racking up an impressive record of losses and dismissals. \u00a0And if that were not enough, the ICC is perceived by many, if not all, African states (silence should not be mistaken for approbation) as a neo-colonialist, white man\u2019s court (dubbed<\/a> by Gambian Information Minister Sheriff Bojang<\/a> as \u201cthe International Caucasian Court\u201d), selectively targeting Africans: basely going after African heads of state and threatening the modus vivendi<\/em> of some who cling to or pine for the bygone era when the continent was governed by impervious strongmen.\u00a0 True or not, these perceptions are real and toxic.<\/p>\n

Perceptions aside, there is no evidence that the ICC has set out to target Africans or to go after African leaders. The reality, however, is that for the past 14 years all the OTP has done is prosecute African cases.<\/p>\n

The OTP has been selective in its prosecutions.\u00a0 It certainly could have spread its wings beyond Africa; surely there were cases to prosecute elsewhere.\u00a0 The first prosecutor, Luis Moreno-Ocampo, has much to account for in damaging the image of the ICC and fostering the perception that it was selectively targeting Africans.\u00a0 As reported in the New York Times Magazine by James Verini in his expos\u00e9 on Moreno-Ocampo<\/a><\/u>, one ICC investigator revealed that Moreno-Ocampo \u201cseemed to see the I.C.C. not as a forensic body so much as a \u2018naming and shaming\u2019 organization,\u201d while a former ICC lawyer told him that Moreno-Ocampo \u201cwould see the leader of a state and say: \u2018There must be evidence out there. Go get it for me.\u2019\u201d(( See <\/em>James Verini, The Prosecutor and the President,<\/a><\/em> The New York Times Magazine, 22 June 2016, p. 11.)) \u00a0It seems that Moreno-Ocampo never met an African leader he did not want to investigate. \u00a0And then when you factor in his notion of the ICC\u2019s raison d\u2019\u00eatre \u2013 \u201c[t]he message a case sends, the shadow of the court \u2013 that was the goal,\u201d(( Id., p. 20.)) \u2013 the perception of the ICC shared by some African heads of state is arguably tenable.\u00a0\u00a0 <\/em><\/p>\n

Let\u2019s face facts; the OTP has been assiduously conducting preliminary examinations and investigating situations.\u00a0

Many of the requests for preliminary examinations and investigations are politically driven.<\/p><\/blockquote><\/div>Many of the requests for preliminary examinations and investigations are politically driven.(( A good example is the 2014 Reprieve (a UK-based NGO) request for investigation accusing NATO member States of war crimes for their participation in the US\u2019s covert drone program in Pakistan. Setting aside a discussion on the utility of using drones on the so called war on terror, considering that targeted killings are lawful when the target is a combatant or fighter or, a civilian when directly participating in hostilities (provided the killings comply with the requirements of international humanitarian law), the Reprieve request begs a question whether this is more of an attention-getting strategy for advancing non-ICC related agenda.\u00a0 Reprieve, Communication to the Office of the Prosecutor, the Situation in Afghanistan: The use of Drone Strikes in Pakistan<\/em> (19 February 2014)\u00a0available here<\/a>. Another example of what may appear as a politically motivated request is a recent referral by Gabon<\/a>, initiated by a leading opposition figure Jean Ping, who having lost the presidential elections to his political rival calls for the ICC investigation of the \u201celectoral coup.\u201d)) \u00a0Some are so sensitive or complex that embarking on a formal investigation, let alone charging and beyond, is like stirring up a hornet\u2019s nest while covered in honey. \u00a0That said, so what? Politically-driven or sensitive situations are no reason for the OTP to shy away from cases.<\/p>\n

So it should come as no surprise \u2013 if it is accurately reported<\/a><\/u> \u2013 that the OTP is about to formally launch an investigation into the situation in Afghanistan. \u00a0But just how judicious is it for the OTP to be launching this investigation considering that the ICC is currently hemorrhaging on all fronts?\u00a0 State parties are divesting from the ICC. \u00a0Its reputation is suffering from a string of mishaps and embarrassing retreats (dare I mention Sudan, and let\u2019s not even think of Kenya). \u00a0And against this backdrop, we now see the rise of the Mechanism for International Criminal Tribunals (MICT<\/a>), ad hoc<\/em> tribunals, and regional courts, all poised to do basically that which the ICC was founded to do.<\/p>\n

\"rock-and-hard-place\"<\/a>The ICC finds itself between a rock and a hard place.\u00a0 If it does not take on the challenging situations, it will be perceived as a toothless tiger; all roar, no bite.\u00a0 If it forges ahead in situations which are likely to consume inordinate amounts of time and precious resources with marginal prospects of yielding profit (i.e., charges being confirmed resulting in appeal-proof convictions), it risks squandering the much needed good will and optimism it can ill afford to lose. \u00a0The Assembly of States Parties is interested in results. \u00a0Gone are the days when the ICC was flush with cash, spending it like a drunken sailor on leave in New Orleans during Mardi Gras.<\/p>\n

So how much sense does it make for the OTP to open a formal investigation into the situation in Afghanistan, when, assuredly, the most prized target is the alleged torture by the United States (US) of detainees between 2003 and 2005?\u00a0 Not that these alleged crimes do not merit investigation and prosecution, if warranted, but realistically, what is the likely outcome and at what expense?<\/p>\n

The known known<\/em>((Former Secretary of Defense Donald Rumsfeld famously (or infamously, considering the circumstances of his remarks concerning the Iraq war) noted: \u201cReports that say that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns \u2013 the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.<\/em>\u201d Defense.gov News Transcript: DoD News Briefing \u2013 Secretary Rumsfeld and Gen. Myers, United States Department of Defense (defense.gov). )) is that the US has investigated these crimes, albeit with disappointing and unsatisfying conclusions.(( See <\/em>The United States Department of Justice Press Release, Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees<\/a><\/em>, 30 August 2012. See also <\/em>the Human Rights Watch (HRW) report<\/a> and the Senate Select Committee on Intelligence report<\/a>, detailing the use of torture during Central Intelligence Agency (CIA) detentions and interrogations and calling for the prosecution of the responsible officials.)) President Barack Obama is no George W. Bush. While exceedingly pragmatic, his convictions on the importance of and adherence to the rule of law are unyielding.<\/p>\n

Human Rights Watch (HRW) may believe that these alleged crimes have calculatingly gone unpunished; the likes of former President George W. Bush, Vice President Dick Cheney, their subordinates, and the alleged physical perpetrators(( HRW notes that the following US officials who \u201cplayed a role in the process of creating, authorizing, and implementing the CIA program should be among those investigated for conspiracy to torture as well as other crimes. They include: Acting CIA General Counsel John Rizzo, Assistant Attorney General for Office of Legal Counsel (OLC) Jay Bybee, OLC Deputy Assistant Attorney General John Yoo, an individual identified as \u2018CTC Legal\u2019 in the Senate Summary, CIA Director George Tenet, National Security Legal Advisor John Bellinger, Attorney General John Ashcroft, White House Counsel Legal Advisor Alberto Gonzales, Counsel to the Vice President David Addington, Deputy White House Counsel Timothy Flanigan, National Security Advisor Condoleezza Rice, Defense Department General Counsel William Haynes II, Vice President Dick Cheney, and President George W. Bush. In addition, James Mitchell and Bruce Jessen, CIA psychologist contractors who devised the program, proposed it to the CIA, and helped carry it out, should also be investigated for their role in the initial conspiracy.\u201d\u00a0 Human Rights Watch, No More Excuses. A Roadmap to Justice for CIA Torture<\/a><\/em>, November 2015, p. 2.)) should have been called before a court<\/a> to answer for their role in advising, designing, ordering, and executing (directly or indirectly) forms of torture they euphemistically referred to as enhanced interrogation techniques<\/em>. \u00a0Assistant United States Attorney (AUSA) John Durham \u2013 no shrinking violet, with a proven track record as a competent and resourceful career federal prosecutor \u2013 conducted a thorough and independent investigation with a highly experienced team of agents (investigators) and prosecutors. \u00a0The US Department of Justice declined<\/a> to initiate criminal charges because \u201cthe admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.\u201d\u00a0 As unsatisfying as this may be, it is the right call; prosecutors should not prosecute for the sake of prosecuting when the evidence is not there, or in the hope that somehow the evidence will surface, or, worse yet, in the hope that a conviction may result notwithstanding the lack of evidence.\u00a0 Embarking on prosecutions that are unlikely to yield convictions due to a lack of admissible and substantial evidence \u2013 as concluded by the US Justice Department after a thorough and independent investigation \u2013 is an abuse of prosecutorial discretion.<\/p>\n

It is tempting to suggest that AUSA Durham and his team engaged in a result-determinative sham investigation or were subjected to undue influence from above to game the investigative process.(( Id<\/em>., stating that \u201c[th]e apparent failure of the investigation to question current or former detainees undercuts any claims that it was thorough or credible.\u201d)) Intriguing, but conspiratorially fanciful. \u00a0This does not mean that crimes may not have been committed, that torture did not occur, or that responsible individuals should not be brought to book. \u00a0It simply means that as far as the US is concerned \u2013 save for new credible and substantial evidence that is likely to tip the balance of probabilities that convictions can be obtained and sustained \u2013 the matter is closed.<\/p>\n

Another known known<\/em> is that the US is distrustful of the ICC.<\/p><\/blockquote><\/div>Another known known<\/em> is that the US is distrustful of the ICC. \u00a0Hard to fathom that it would accept the investigative findings of and acquiesce to the prosecutorial authority of the OTP. \u00a0There is a reason why the US has been, for all intents and purposes, undermining the viability of the ICC \u2013 at least in relation to any actions against US military personnel or civilians.\u00a0 Having walked away from signing the Rome Statute, the US has doggedly pushed states that have signed on to the Rome Statute into entering bilateral non-surrender agreements, or so-called \u201cArticle 98\u201d agreements, shielding US citizens from the jurisdiction of the ICC.(( Article 98 of the Rome Statute provides, inter alia<\/em>, that \u201c[t]he Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.\u201d See <\/em>The Coalition for the International Criminal Court\u2019s List of the US Bilateral Immunity Agreements<\/a>, listing 100 agreements as of December 2006. The US also enters into multilateral or bilateral agreements known as Status of Forces Agreement (SOFA) on \u201cthe rights and privileges of U.S. personnel present in a country in support of the larger security arrangement,\u201d i.e., \u201chow domestic laws of the foreign jurisdiction apply toward U.S. military personnel in that county.\u201d See<\/em> R. Chuck Mason,\u00a0Status of forces Agreement (SOFA): What Is It, and How Has It Been Utilized?\u00a0<\/em>U.S. Congressional Research Service (15 March 2012). )) \u00a0For example, in 2014, when the Republic of Mali (a signatory to the Rome Statute) sought the ICC\u2019s assistance in relation to the United Nations Multidimensional Integrated Stabilization Mission, President Obama issued a memorandum asserting that members of the US armed forces were not at \u201crisk of criminal prosecution or other assertion of jurisdiction by the ICC because the Republic of Mali ha[d] entered into an agreement \u2026 [under] Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States\u201d in Mali.(( U.S. Office of the Press Secretary, Presidential memorandum\u2014Certification Concerning U.S. Participation in the United Nations Multidimensional (31 January 2014). Mark Kersten points out that the legal basis for the Obama\u2019s memorandum was a 1997 SOFA agreement between the US and Mali. Mark Kersten, No Bush-Style BIA- A Clarification on Mali and the US<\/a><\/em>, 5 February 2014. For more on the US-ICC relationship, see <\/em>my earlier post \u201cJust How Relevant is the ICC? – Part III<\/a><\/em>.\u201d))<\/p>\n

Against this backdrop, how feasible is it that the US will subordinate its sovereign authority (to prosecute and punish its citizens in US courts) to the OTP?\u00a0 Not at all feasible. Considering the time and resources needed to investigate these matters, along with the broader scope of alleged torture in Afghanistan during the designated temporal period by all concerned (for example, the Taliban, Afghan government forces, coalition members, etc.), this is a Herculean (or Quixotic) endeavor that is likely to last years.<\/p>\n

For optical and public relations reasons, it seems timely and appropriate to formally investigate crimes alleged to have been committed by US forces, CIA agents, and civilian contractors engaged in detentions and interrogations in Afghanistan. \u00a0But this will hardly allay the discontent of the African states that see the ICC as a white man\u2019s burden<\/em> court.<\/p>\n

The timing to the OTP\u2019s investigation may purely be serendipitous, unrelated to current events such as the exodus of some African states who, as a pretext to disengaging from the ICC, complain that crimes falling under the ICC jurisdiction which are taking place outside the African continent are purposely ignored.<\/p>\n

Most likely, the OTP\u2019s decision to formally investigate the situation in Afghanistan was in the pipeline, predating these African states\u2019 decisions to leave the ICC. \u00a0This may be even more reason for the OTP to continue its investigation so that it demonstrates that the ICC is not Africa-focused. But when circumstances change (such the announcement of South Africa, Burundi, and Gambia to leave the ICC) and when considering the OTP\u2019s string of embarrassing setbacks, its need to improve its image with quantifiable deliverables, expected rationalization of costs (budgetary constraints are only a matter of time), and so on, should not the OTP\u2019s views and agenda change too?\u00a0 The OTP may be biting off more than it can chew, let alone swallow and digest.<\/p>\n

In her recent Policy Paper<\/a>, ICC Prosecutor Fatou Bensouda intimates<\/a> that the OTP is ready to pivot, to focus its attention to crimes that are less traditional than what the ad hoc<\/em> and international(ized) tribunals have been prosecuting, giving \u201cparticular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia<\/em>, the destruction of the environment, the illegal exploitation of natural resources or the illegal disposition of land.\u201d \u00a0Tackling these sorts of crimes may appear less cumbersome and presumably easier to prosecute.\u00a0 Presumably.<\/p>\n

When considering where these crimes generally occur and who is at the top of the food chain in committing or sanctioning the commission of these crimes, the conundrum remains.\u00a0 The ICC would still be targeting heads of state and government officials of under-developed or developing countries who directly or indirectly are involved in these crimes.\u00a0 Solace may be given to the African heads of state and government officials that in prosecuting these crimes, the OTP will look beyond Africa for cases. But is this enough? \u00a0This reinforces the perception that the heads of state and government officials of the lily-white West (though virtually all states in the West are multi-cultural and multi-racial) would effectively remain immune from prosecution.<\/p>\n

In her Opinio Juris post, The Re-branding of the International Criminal Court (and Why African States Are Not Falling For It<\/a>)<\/em>, Christine Schwobel-Patel interestingly observes:<\/p>\n

Although the changing of priorities appears to be diversifying the prosecution of grave crimes, the African states withdrawing from the Court are most likely under no illusion of the neo-colonial flavor of the ICC dissipating. In fact, it looks as though the re-brand of the ICC is likely to be a move which further stigmatizes the global South while protecting the interests of the military and economic powers of the global North.<\/p>\n

Schwobel-Patel further surmises that this re-branding \u201ccould be an indication of a further bloating of the ICC\u2019s staff, greater narcissism, and continued sycophantism to Western and military power.\u201d \u00a0Schwobel-Patel has grasped the nettles. \u00a0Her perspective merits serious reflection.<\/p>\n

The South-North divide is and will remain a burning issue for those from the global South with the ICC\u2019s selectivity in prosecuting cases. \u00a0But what choice does the ICC have?\u00a0 Is it realistic to think that George W. Bush or Tony Blair or Vladimir Putin will be in the ICC dock?<\/p>\n

It is time for a reality check. \u00a0The ICC cannot be all it was meant to be.\u00a0 Exalted rhetoric and extravagant promises are pleasing to the ear and achievable in the abstract. \u00a0Reality, however, is sobering, sometime cruel, and more than often unfair. \u00a0Not all crimes subject to the Rome Statute are committed in the global South. \u00a0But as day follows night, crimes (even if grave) committed in or by the global North by the permanent members of the United Nations Security Council are unlikely to be tried in The Hague. \u00a0In part this may be due to complementarity. In part, not; a simple matter of double standards.\u00a0 Nonetheless, even where it appears that a thorough and objective vetting of the evidence of alleged crimes has occurred, as was the case with the US investigation into alleged torture in Afghanistan, in which US investigative and prosecutorial authorities declined to bring charges, the reflexive response tends to be that the fix is in.<\/p>\n

So, is there an answer?<\/p>\n

The OTP has recently demonstrated its capacity for nimbleness by rapidly achieving a guilty verdict (thanks to plea bargaining<\/a>) in the Ahmed Al-Faqi<\/em> Al Mahdi<\/em> case<\/a> for the destruction of cultural, religious, and historical monuments in Timbuktu, Mali, and a relatively quick guilty verdict in the Bemba et al.<\/em> Article 70<\/a> (interference with the administration of justice) case \u2013 which, if the findings of fact accurately reflect the evidence, display respectable investigative capabilities by the OTP. \u00a0Achieving these sorts of quick successes should be the OTP\u2019s priority.\u00a0 Such a change of direction may not stem the exodus of the African states that are experiencing buyer\u2019s remorse because their heads of state have come to realize that their heads (pun intended) could land on the ICC chopping block should they engage in conduct falling under the ICC jurisdiction for prosecution.\u00a0 However, a change in the OTP\u2019s prosecutorial priorities would do wonders for the ICC\u2019s image.<\/p>\n

Since perception matters, the OTP should channel its energy and resources in plucking low hanging fruit, as opposed to chasing after windmills. To paraphrase the British rock and roll legend, Mick Jagger, the OTP may not always get what it wants, but if it tries sometimes, it might find it gets what it needs. And what the OTP needs now is a perception makeover.<\/p>\n

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The truth is normally what one perceives it to be. \u00a0At least, that is what I have found in trying cases before juries.\u00a0 In fact, a trial before a jury is nothing short of a perception game; with each side marshalling the facts, crafting the narrative, and arranging the composition of events from jury selection … Continue reading “Will launching investigations into non-African situations stem the exodus of African states from the ICC?”<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_s2mail":"yes","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[18,21],"tags":[4,7],"class_list":["post-1717","post","type-post","status-publish","format-standard","hentry","category-icc","category-international-criminal-law","tag-icc","tag-international-criminal-law"],"yoast_head":"\nWill launching investigations into non-African situations stem the exodus of African states from the ICC? - michaelgkarnavas.net\/Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/michaelgkarnavas.net\/blog\/2016\/11\/07\/investigating-non-african-situations\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Will launching investigations into non-African situations stem the exodus of African states from the ICC? - michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"og:description\" content=\"The truth is normally what one perceives it to be. \u00a0At least, that is what I have found in trying cases before juries.\u00a0 In fact, a trial before a jury is nothing short of a perception game; with each side marshalling the facts, crafting the narrative, and arranging the composition of events from jury selection … Continue reading "Will launching investigations into non-African situations stem the exodus of African states from the ICC?"\" \/>\n<meta property=\"og:url\" content=\"https:\/\/michaelgkarnavas.net\/blog\/2016\/11\/07\/investigating-non-african-situations\/\" \/>\n<meta property=\"og:site_name\" content=\"michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"article:published_time\" content=\"2016-11-07T20:00:22+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2016-11-07T21:13:43+00:00\" \/>\n<meta property=\"og:image\" content=\"http:\/\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/11\/Perception1-300x225.jpg\" \/>\n<meta name=\"author\" content=\"Michael G. 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