Security Council moves to action on child-soldiering

U.N. Security Council

The U.N. Security Council took a step toward stepping up international efforts to combat the harming of children in armed conflict – among other harms, recruiting children as soldiers.
The step came just months after a trial chamber of the International Criminal Court entered convictions for the war crimes of enlisting and conscripting child soldiers, as well as the war crime of using children to participate actively in hostilities.
Security Council Resolution 2068 (Sept. 19, 2012) thus made specific reference to "relevant provisions of the Rome Statute" of the ICC, and speakers at the debate referred specifically to the ICC decision in Prosecutor v. Lubanga. (prior posts) For example, a Security Council press release reported that David Tolbert, President of the International Center for Transitional Justice, a New York-based nongovernmental organization, urged the Council "to leverage the verdict to strengthen national processes in the Democratic Republic of Congo," the state out of which the Lubanga case arose.
Resolution 2068 stated further, in part, that the Council:

'2. Strongly condemns all violations of applicable international law involving the recruitment and use of children by parties to armed conflict as well as their re-recruitment, killing and maiming, rape and other sexual violence, abductions, attacks on schools and/or hospitals as well as denial of humanitarian access by parties to armed conflict and demands that all relevant parties immediately put an end to such practices and take special measures to protect children;
'3. Expresses deep concern that certain perpetrators persist in committing violations and abuses against children in situations of armed conflict in open disregard of its resolutions on the matter, and in this regard:
'(a) Calls upon Member States concerned to bring to justice those responsible for such violations through national justice systems, and where applicable, international justice mechanisms;
'(b) Reiterates its readiness to adopt targeted and graduated measures against persistent perpetrators, taking into account relevant provisions of its resolutions 1539 (2004), 1612 (2005), 1882 (2009) and 1998 (2011); ...
'5. Reiterates its call upon the Working Group on Children and Armed Conflict to consider, with the support of the Special Representative for Children and Armed Conflict, within one year, a broad range of options for increasing pressure on persistent perpetrators of violations and abuses committed against children in situations of armed conflict; ...'

Leila Zerrougi

The vote – which came after presentations by Leila Zerrougi of Algeria, the new Special Representative on this issue, and some 60 others – was 11-0-4. The abstainers were Azerbaijan, China, Pakistan, and the Russian Federation.

'[M]any speakers expressed disappointment that the Council had been unable to reach consensus on the resolution,"

according to the Council's release regarding the debate. (above left, photo in memory of Mamusu, a onetime girl soldier in Sierra Leone who died at 17 and is honored as an IntLawGrrls foremother)
Among the "measures" contemplated for "persistent perpetrators" – states and nonstate actors alike – were "tailored political engagement" by the Council, "strengthened accountability measures and targeted measures."
U.S.Ambassador Jeffrey DeLaurentis, however, expressed in his remarks concern that "free-standing" sanctions – related only to children and armed conflict – "would not seem to address the need for better tools to deal with persistent perpetrators." He urged exploration of additional possibilities.
The Council's release quoted Zerrougi with respect to such action:

'It would send a strong signal that the resolutions of this Council are not only words on paper, and that vigorous action can be taken when they are not implemented.'

Keep watch to see whether that stronger signal in fact issues.

ICC Review Conference Considers When International Criminal Adjudication Makes Sense

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post to IntLawGrrls' series on the ICC Kampala Conference)

KAMPALA, Uganda – As others have noted in this series of posts, the Review Conference of the Rome Statute of the International Criminal Court under way in Kampala has devoted two days to a “stocktaking” exercise. The idea was to review key issues in international criminal justice with a view to enhancing the work of the ICC. These portions of the Review Conference felt a lot like law school panel discussions, except that after the panelists spoke they took questions and comments from representatives of states and NGOs rather than from faculty and students.

Two of the stocktaking topics – peace/justice and complementarity – raised important issues relevant to the advisability and legitimacy of ICC prosecutions in particular situations. The peace/justice discussion considered whether it is ever appropriate for justice to be sacrificed in the name of peace (a question on which IntLawGrrl Kathleen A. Doty yesterday posted with regard to Darfur). The complementarity session, meanwhile, concerned how the task of providing justice should be allocated between international and domestic courts. This post provides some details on those discussions, as well as a few thoughts about what was left out.

Peace/justice

Setting the stage for the peace/justice session was Human Rights Watch Executive Director Kenneth Roth session, who questioned the common assumption that peace and justice are in conflict. As evidence of a more harmonious relationship between these goals, Roth cited the claim by Richard Goldstone, the 1st Prosecutor of the ad hoc tribunals, that the Dayton peace accord would not have been possible without the issuance of arrest warrants of Bosnian Serb leaders Radovan Karadžić and Ratko Mladić. Roth also noted that many believe the peace process was assisted both by the indictments of Charles Taylor, then President of Liberia, by the Special Court for Sierra Leone and by the ICC’s pursuit of the leaders of the Lord's Resistance Army in Uganda. In contrast, Roth noted that amnesty agreements have often failed to secure lasting peace, citing Sierra Leone and Angola as examples.

David Tolbert, formerly Deputy Chief Prosecutor at the International Criminal Tribunal for the former Yugoslavia and now head of of the International Center for Transitional Justice, opined that amnesty is now entirely off the table in conflict resolution efforts. Tolbert noted, however, that prosecutors must be sensitive to the political situation on the ground – although politics can’t impact the decision to prosecute they might affect the timing of prosecutions.

Providing a somewhat different perspective was James LeMoyne, an experienced conflict mediator. LeMoyne emphasized the importance of stopping conflict to advance human rights. He recalled the threats of commanders with whom he negotiated in El Salvador that any talk of prosecution would lead directly to more killing. LeMoyne also pointed out that many of the people with whom he negotiates have not even heard of the ICC.

Barney Afako, a Ugandan human rights lawyer, cautioned that the LRA arrest warrants may have prevented an agreement to end the war, while Cambodian activist and Khmer Rouge survivor Youk Chhang asserted that victims always want justice. State representatives also expressed conflicting views on the peace/justice debate.

While many delegates, including representatives of Congo and the European Parliament, emphasized the importance of justice for peace, China expressed the view that the two sometimes conflict and that the ICC should be more careful about exercising jurisdiction in ongoing conflicts. Iran also spoke out in favor of amnesty in some circumstances.

In sum, the discussion surfaced many of the crucial and controversial elements of the peace/justice debate. At the same time, there was little concrete discussion of the ICC’s contributions thus far to peace or justice, and even less progress in resolving how the ICC should approach the selection of situations and cases in ongoing conflicts.

Complementarity
The complementarity discussion was kicked off by U.N. High Commissioner for Human Rights Navanethem Pillay (right) (prior posts), who raised concerns about the ICC’s policy of focusing on the most responsible perpetrators. Pillay worried that the policy may leave states with the impression that national prosecutorial obligations are also limited to high-level perpetrators. Pillay also expressed the hope that the ICC’s complementarity regime would promote respect for the ability of states to conduct trials for international crimes; in so doing, she stated that the ad hoc tribunals have not always shown such respect. She implicitly criticized decisions by which the International Criminal Tribunal for Rwanda (of which she previously served as President, before becoming an ICC Judge and, subsequently, the High Commissioner) refused to transfer cases to the domestic courts, refusals based on the ICTR's conclusion that domestic trials would not meet international standards.

Two national court judges involved in adjudicating international crimes provided interesting perspectives from the national justice side. Justice Dan Akiiki-Kiiza of Uganda, along with a Congolese counterpart, emphasized that their national systems are cooperating with the ICC. Interestingly, however, Justice Kiiza also stated that the Ugandan system is both willing and able to try all suspected criminals – in effect, saying that Uganda doesn’t really need the ICC.

The state interventions after the panel were mostly pledges of support for the notions that states must take primary responsibility for prosecuting international crimes and reiterations of the view that it is appropriate for both the ICC and states to assist one another in developing such capacity.

Some states, including Spain and Germany, seemed concerned about the ICC’s policy of “positive complementarity,” whereby it seeks to assist states in bolstering their ability to prosecute international crimes. These states were concerned that positive complementarity implies some additional bureaucracy outside the confines of the Rome Statute. The German representative noted that complementarity is a negative concept in Article 17 of the Rome Statute, which precludes the ICC from intervening when a relevant state is doing so genuinely.

At the end of the session, however, ICC Prosecutor Luis Moreno-Ocampo (near left) addressed the issue. (photo credit) In Moreno-Ocampo's view, the statutory basis for “positive complementarity” is not Article 17, but rather Article 93(10), which authorizes the Court to provide various kinds of assistance to states. Moreno-Ocampo assured the states that no additional bureaucracy is needed for such assistance, since the ICC already possesses the relevant information and materials by virtue of its regular activities.

Finally, the ICC President, Judge Sang-Hyun Song (above, far left), said that in his view, complementarity is either a rule of customary international law or close to attaining that status.

In all, the complementarity discussion was fairly uncontroversial – certainly less so than peace/justice. Like in the earlier session, though, there were little in the way of concrete suggestions concerning the appropriate relationship between the ICC and national courts. A number of difficult issues remained just under the surface of the conversation – including whether it is appropriate for the ICC to prosecute “self-referred” cases if the referring government is perfectly capable of doing the job itself.

Conclusion
In all, the Review Conference’s stocktaking on peace/justice and complementarity was more interesting for its tone than its content. Unlike at the 1998 Rome Conference, where many states expressed skepticism or even outright hostility toward the notion of international criminal justice, those that spoke in Kampala were overwhelmingly supportive of the enterprise. Even non-party states that have traditionally portrayed the ICC as an improper assault on sovereignty were careful to couch their comments as broadly supportive of international justice efforts.

Anyone who was hoping for a more substantive and introspective discussion of the legitimacy of ICC action was, however, disappointed.

Days Two and Three in Kampala

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda -- Days Two and Three at the ICC Review Conference have been very interesting. On Tuesday, June 1, the official program included statements by countries, intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs). One statement that was listened to quite closely that of Ambassador Stephen Rapp for the United States, in which he raised several questions of concern about the ongoing discussions on the crime of aggression. The Netherlands announced that it had collected 112 pledges from 37 states to provide the ICC with financial and other assistance. For example, Australia pledged to provide 100,000 Euros to the ICC’s Trust Fund for Victims.
I also attended the final portion of the full-day Women’s Court, organized by the Women’s Initiatives for Gender Justice and held in the People’s Space tent. This portion focused on testimonies from individuals from Sudan and was chaired by Elisabeth Rehn, Chair of the Board of Directors of the Trust Fund for Victims (pictured left). I had read Halima Bashir’s book, Tears of the Desert: A Memoir of Survival in Darfur, on the flight to Kampala. In her book, Dr. Bashir describes how she – as a young Zaghawa medical doctor – treated victims of the Janjaweed militia, including schoolgirls who had been repeatedly and brutally raped. She, in turn for providing medical care for her own people, was beaten, tortured and raped by the Sudanese security forces. The three individuals speaking at the Women’s Court event described similar stories of rape, torture, killing, displacement, economic deprivation and desperate survival in Darfur. They also described how the laws in Sudan make it very difficult for rape survivors to seek justice, and how individuals suspected of supporting the ICC and other human rights defenders are targeted for detention and mistreatment in Sudan.
June 2 began with the first stocktaking exercise, on the impact of the Rome Statute system on victims and affected communities. Radhika Coomaraswamy, Special Representative of the Secretary-General on Children and Armed Conflict, gave the keynote address (pictured left). Her speech was followed by a panel discussion involving Justine Masika Bihamba of Synergie des femmes pour les victimes des violences sexuelles in the Democratic Republic of the Congo (pictured right), Elisabeth Rehn, Carla Ferstman of REDRESS, David Tolbert of the International Center for Transitional Justice, Binta Mansaray of the Special Court for Sierra Leone and Silvana Arbia of the ICC. Ms. Arbia, the ICC’s Registrar, noted that the ICC has received 2600 applications from individuals to be admitted as victim participants in the ICC process. Of these, more than 800 have been accepted by the Court. Several themes emerged from the stocktaking exercise, including:

• the importance of protecting intermediaries, who are crucial in helping the ICC gain access to victims,
• the challenges facing the ICC in getting sufficient information to women, who may not, for example, have access to the family radio – an important source of information about the ICC,
• the need for the ICC to effectively manage victims’ expectations of what the Court can do for them;
• the need for the ICC to improve its two-way dialogue with victims, and
• the need for States Parties to cooperate with the Court so as to better protect victims.

In the afternoon, the stocktaking exercise on peace and justice took place. After hearing from panelists David Tolbert, peace mediator James LeMoyne, Youk Chhang of the Documentation Center of Cambodia and Barney Afako of the Juba peace process, states, IGOs and NGOs made statements and asked questions. Again, several interlinked themes emerged:

• there is a positive relationship between peace and justice, but also a tension.
• in some sense, the existence of the ICC and other international criminal justice mechanisms can strengthen a mediator’s hand because they clearly remove amnesty as a bargaining chip. However, this can also make a mediator’s job harder: how to get individuals and groups to agree to peace? Mediators need to be creative.
• the ICC holds the potential to deter serious international crimes, but we need to make justice – both international and domestic - more normal to make deterrence more real.
• the views of victims on whether they wish to prioritize peace or justice, or both, may shift over time.
• It is important for all of us to stand up to those who are defiant of the ICC. Justice will always have enemies.

At the end of the day, the International Committee of the Red Cross (ICRC) launched its newest publication: The Domestic Implementation of International Humanitarian Law. For those interested in IHL, I urge you to check out this wonderful resource once it is posted on the ICRC website.
June 3 marks the second day of the stocktaking exercise, with a focus on complementarity and cooperation.

David Tolbert to Head the ICTJ

A short note by way of announcement: our colleague David Tolbert (prior post), a contributor to the International Criminal Law Review Special Issue on Women in International Criminal Law announced earlier and co-sponsored by IntLawGrrls (see the Call to Papers under our globe map at right)), will assume the position of President of the International Center for Transitional Justice in March 2010.
Tolbert has enjoyed a stellar career in international law. Prior to accepting this post, he was Registrar for the Special Tribunal for Lebanon. He’s also served as a Senior Legal Advisor in the United Nations, Deputy Chief Prosecutor for the ICTY, and U.N. Assistant Secretary General with a focus on the Extraordinary Chambers in the Courts of Cambodia.
Heartfelt Congratulations!