'Nuff said

(Taking context-optional note of thought-provoking quotes)

'No one has sat back to say, "What are our objectives?" ... The model has become, we will go to dangerous places and transform them, and we will do it from secure fortresses. And it doesn’t work.'

– Prudence Bushnell, who served as U.S. Ambassador to Kenya on Aug. 7, 1998, the date of the bombings of U.S. embassies there and in Tanzania that killed more than 200 persons and injured more than 4,000. Bushnell was quoted in a Sunday New York Times article by veteran reporter Robert F. Worth, the online title of which is "Can American Diplomacy Ever Come Out of Its Bunker?" Occasioning these questions, of course, is the attack in Benghazi this past September 11 that left Christopher Stevens, U.S. Ambassador to Libya, and 3 others dead. (prior post) More than 2 months later, officials and pundits in Washington continue to pursue blame for a perceived failure, as Worth reports. He offers an alternative account, quoting numerous U.S. diplomats who fear that exponentially stepped-up security – 150 security officers in 1985, 900 today – will prevent diplomats from engaging in the kinds of cultural exchanges long seen as the heart of their jobs. (credit for 2002 photo of Bushnell, at left, talking with a mother at a nutrition center, in her subsequent posting as U.S. Ambassador to Guatemala)

Kenya Again Has Universal Jurisdiction Over Piracy

The Kenyan Court of Appeal in Nairobi has overturned the Mombasa High Court judgment of November 9, 2010, in which Judge M.K. Ibrahim had ruled that Kenyan courts did not have jurisdiction to prosecute anybody for the crime of piracy, unless the crime took place in Kenyan territorial waters.
In the case of In re Mohamud Mohammed Hashi, et al., decided on October 18, 2012, the Court of Appeal determined that Kenyan courts would once again have universal jurisdiction over the crime of piracy.
As yours truly and many others have written before, Kenya had concluded a series of transfer agreements with maritime nations, whereby Somali pirates captured by such maritime nations would be transferred to Kenya, for prosecution in the Kenyan magistrate-level courts. The Mombasa High Court’s 2010 judgment signaled the end of the Kenyan transfer program, because of its holding that only territorial piracy crimes could be prosecuted in the Kenyan courts (for an excellent analysis of this judgment, see this post). Most instances of Somali piracy take place on the high seas, and as such, none would have been eligible for prosecution in the Kenyan courts under the magistrate court ruling.
After the November 9, 2010, ruling, the international community reacted with both concern and pragmatism.
Attempts were made at the diplomatic level to persuade the Kenyan authorities to resume prosecutions. In addition, two new regional partners were identified: the Seychelles and Mauritius both concluded similar transfer agreements with major maritime nations, whereby these two nations agreed to prosecute captured Somali pirates in their national courts.
Facing pressure by the international community, as well as the prospect of losing the transfer model exclusivity, Kenya responded by establishing a special appellate jurisdiction in which the November 9, 2010, ruling would be challenged. The appellate panel was composed of five justices, who, after almost a 2-year delay, unanimously determined that the 2010 ruling would be overturned.
The appellate judgment should result in the restart of the Kenyan transfer program, and in the resumption of ongoing piracy trials in the Mombasa courts, which had all been halted pending this appeal.

Justice David K. Maraga

The Court of Appeals judgment was delivered by Justice David K. Maraga. Justice Maraga determined that the Mombasa High Court had misinterpreted Kenyan law, by subordinating a specialized substantive section on piracy to a more general section on jurisdiction.
In addition, Justice Maraga decided that the lower court had failed to appreciate the applicability of the doctrine of universal jurisdiction.  He wrote that

'the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.'

It seems that, according to Justice Maraga, Somali piracy constitutes a global threat, and that courts of all nations, including Kenya, should be able to prosecute the crime of piracy under the concept of universal jurisdiction.
The re-opening of Kenyan courtrooms for the prosecution of Somali pirates is a welcome development in the global fight against Somali piracy.

Report from U.N. meeting on Somali piracy

On September 17-18, 2012, I had the opportunity to attend the 11th meeting of the U.N. Contact Group on Piracy off the Coast of Somalia, Working Group 2, in Copenhagen, Denmark. Professor Michael Scharf of Case Western Reserve University Law School and I, in our capacity as independent academics as well as members of the Public International Law and Policy Group, Piracy Working Group, were invited to give a presentation at the Working Group 2 meeting. (We're pictured above left, and below with Ambassador Thomas Winkler, the Chair of Working Group 2.)
Our topic was juvenile pirates – the treatment of detained juvenile pirates by the capturing and/or prosecuting state, as well as the need to aggressively detain and prosecute those who recruit juvenile pirates. Our brief presentation was followed by an intense question-and-answer session, during which we attempted to answer many provocative inquiries addressed at us by the delegations of more than 50 states represented at this meeting.
It was our recommendation that juvenile pirates should not be caught and released, but that instead they should be prosecuted under special circumstances, taking into account their age as well as the possibility to retrain, re-educate and rehabilitate them.  If juvenile pirates are released, they should not be simply "dumped" on the shore of Somalia; instead, every effort should be made to contact their family members for the purpose of reuniting them.
It was also our recommendation that those who affirmatively recruit juvenile pirates should be treated more harshly: for example, that the use of juvenile pirates would be an aggravating factor in sentencing. Another innovative approach would be to argue that the use of juvenile pirates is a crime against humanity, citing international criminal tribunal precedents in which the accused were convicted of of child-soldier recruitment.
In addition to our presentation on the issue of juvenile pirates, Working Group 2 members discussed several other important topics. The meeting started with updates by member states on any developments regarding their own experiences in combating Somali piracy in the last six months. Some such notable developments include:
►the first-ever post-conviction transfer of Somali pirates, convicted in the national courts of the Seychelles, to Somaliland, where they will serve their entire sentences;
►the first-ever extradition of detained pirates from the Seychelles to the Netherlands for the purposes of prosecution in the Netherlands;
►the signing of transfer agreements between Mauritius and several maritime nations, whereby Somali pirates captured by the latter will be transferred to Mauritius for prosecution in this country’s national courts;
►the update by Kenya that a long-awaited appellate judgment, which could effectively restart piracy trials in Mombasa, will be rendered at the end of September.
Working Group 2 members then discussed various human rights considerations linked to the detention and possible prosecution of suspected Somali pirates.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The other suspects – Deputy Prime Minister Uhuru Kenyatta, radio journalist Joshua Sang, and Eldoret North MP William Ruto – want the trials to start after elections in March next year.
'The ICC prosecutor seems to agree with them. I will tell you why Mr Muthaura is right, and the ICC wrong.'

–  Our colleague Makau Mutua (right), Dean of SUNY Buffalo Law School and a Vice President of the American Society of International Law, in an op-ed recently published in the Nairobi-based newspaper Saturday Nation. In the commentary Makau advocates trial this year for the 4 persons still under International Criminal Court indictment in the Situation in the Republic of Kenya, a matter that IntLawGrrls have frequently discussed, in posts available here.

Kony 2012, the ICC & peace/justice divide

(My thanks to IntLawGrrls for the opportunity to contribute, in 2 parts, this version of the remarks I delivered on the "Africa & the ICC" panel at the March 2012 annual meeting of the American Society of International Law. A full version of my comments will be published in the ASIL Annual Meeting Proceedings)

The viral Kony 2012 video makes evident the dangerous slippage between justice and peace.
The short film is just a recent example of the tendency to treat justice (popularly seen as the law) and peace (seen as political) as mutually exclusive. Unfortunately, this justice-peace binary, and discourses that perpetuate it, obfuscate some of the issues at the core of the violence on the African continent. Justice becomes reduced to law, while peace loses any justice-producing qualities.
The famous adage, “We ask for justice, you give us law” speaks to part of the problem – to the assumption that the search for “justice” is fundamentally about the search for law.
There is another part to the problem. Actions that some might see as “justice-producing” – diplomacy, peace negotiations, economic redistribution strategies, forgiveness rituals – fall outside of the realm of “justice,” because others say these actions lack the “teeth” of legal accountability.
Those who focus on international criminal adjudication as justice have assumed that violence in certain places in Africa can be managed as a legal problem alone, rather than the larger structural problem that it is.
Related to this is the legal doctrine of command responsibility, which serves to assign guilt to a chief commander and a few top aides. Its power is as much legal as symbolic – it flags that impunity is at an end, that we are watching.
The problem is that in most violence-based contexts on the continent, where there are struggles over the management of resources or where violence is used to regulate civilian behavior, reassigning the guilt of thousands of people to a single chief commander does not accurately attend to the core problems involved in the making of war, let alone produce the conditions for a violence-free future.

Kony 2012
Kony 2012, in its very title, makes just that reassignment.
Inspired by the travels of Jason Russell, Kony 2012 narrates Uganda’s 25-year-old war, its violence, and the consequential death and displacement of millions of Ugandans. Drawing a direct link to Joseph Kony (prior IntLawGrrls posts), the film demands that Kony be held accountable for all of the violence committed by the Lord’s Resistance Army that he leads.
As Russell narrates in the film,

'Kony heads the Lord's Resistance Army, a Christian terrorist group which has reportedly abducted and forced more than 30,000 children to fight with them since their revolt began in 1986.'

He then discloses that his commitment was inspired by a promise he made to Jacob, a young Ugandan boy whose brother was killed by Kony’s men.
The story, then, is about how American political participation, and stopping a single leader, will rectify Uganda’s plight.

Russell’s savior complex is catapulted with the message that by donating money through a simple click of your mouse, and buying a kit that will help fund Kony’s arrest, every American can also be part of the solution to help poor Ugandan victims. The simplicity of the message is compelling, and suggests that Africa can be transformed by our philanthropy.
The sad reality is that Kony 2012 is one of a series of ultimately flawed philanthropic and humanitarian gestures which claim that capturing a single commander will solve Africa’s problems, and that justice equals law.
Compare Kony 2012’s message to that of the individualization of criminal responsibility seen in the new wave of international criminal justice. The same narrative inheres: that juridical action focused on a few commanders and top-ranking leaders will end impunity.
But the reality is that locating adjudication as the answer simply displaces the place of “the political.”
Re-engaging the political involves uncovering root causes at the core of violence itself. It returns us to the reality that solving Africa’s problems must involve African participation. Re-engaging the political must include a deliberative process and necessary rebuilding of institutions, and its laws must emerge out of a process that Ugandans see as politically legitimate.
An example of the perceived distinctions between peace and justice, especially as they relate to larger questions of criminal responsibility, may be found in aspects of the situation in Uganda.

Perceptions of justice & peace in Uganda

The ICC’s involvement in Uganda began in July 2003, when the Office of the Prosecutor identified Uganda as a situation of concern. At that point, prosecutors began examining the situation in Uganda with greater scrutiny.
Meanwhile, in November that same year, Betty Bigombe (right ), the former Minister of State for the Pacification of the North, began to meet with top LRA members in an attempt to reach a peaceful settlement to the conflict in northern Uganda. (photo credit)
These talks resulted in a geographically bounded 7-day ceasefire between the LRA and the Ugandan forces. The ceasefire was renewed continuously in anticipation of a final agreement at year’s end, as Lucy Hovil (left) (prior IntLawGrrls post), Senior Researcher at the International Refugee Rights Initiative, described in her 2011 paper entitled A poisoned chalice: Local civil society and the International Criminal Court’s engagement in Uganda.
But in December 2003, Ugandan President Yoweri Museveni decided to refer the LRA-Uganda situation to the ICC.
By January 2004, the peace agreement had been disrupted, and renewed hostilities erupted in the region.

Introducing Lindsay M. Harris

It's my great pleasure to introduce a former student of mine, Lindsay M. Harris (left), as an IntLawGrrls contributor.
Lindsay is an Akin Gump Equal Justice Works Fellow and Immigration Staff Attorney at the Baltimore, Maryland, and Washington, D.C., offices of the Tahirih Justice Center. Lindsay leads the Tahirih Justice Center's African Women’s Empowerment Project. She also teaches Refugee and Asylum Law as an Adjunct Professor at George Mason University School of Law in Arlington, Virginia.
Her introductory post below draws from both these experiences: reflecting on a quiz she gave to law students, she discusses the efforts of the African Women's Empowerment Project to litigate gender-based asylum claims on behalf of African immigrant girls and women. Lindsay concludes by suggesting a legislative change that might ease difficulties that the current state of the law poses to such claims.
A 2009 graduate of the University of California, Berkeley, School of Law, Lindsay was an excellent student in the Civ Pro II class I taught while a visiting Professor of Law there. Her exemplary law school record includes: receipt in 2009 of the Sax Prize for Excellence in Clinical Advocacy, for her participation in Berkeley Law’s International Human Rights Clinic and the East Bay Community Law Center’s Health and Immigration Unit; work with Lawyers for Human Rights and the Forced Migration Studies Program in South Africa, and with the Center for Gender and Refugee Studies at the University of California Hastings College of the Law; leadership of the California Asylum Representation Clinic and the Boalt Hall Committee for Human Rights; and service as Symposium Editor and Senior Articles Editor for the Berkeley Journal of International Law. In 2009, Lindsay published an article on gender-based asylum claims in South Africa; in 2010, a co-authored article on gang-related asylum claims in the United States.
After graduation, Lindsay was a law clerk for Judge Harry Pregerson, U.S. Court of Appeals for the Ninth Circuit, where she focused on immigration and asylum law. Prior to law school, she'd been as Managing Director of a fair trade non-profit organization, working with artisans in seven African countries.
Lindsay dedicates her posts to Dr. Wangari Muta Maathai (right), the 2004 Nobel Peace laureate who passed away last September, 71 years after her birth in a village in Kenya. (photo credit) Lindsay writes:

'She was a true visionary and activist who understood the important connections between so many of the world’s problems today, including human rights, the environment, and governance.'

Today Maathai (prior posts) joins the many other women honored on IntLawGrrls' transnational foremothers page.

Heartfelt welcome!

On April 17

On this day in ...
... 1885, Karen Dinesen was born in Rungsted, Denmark, to a writer-soldier father of aristocratic background and a mother from a merchant family. Educated at home and abroad, she began writing fiction in her 20s. In 1914, Baroness Karen von Blixen (right) moved with her new husband (a Swedish baron who was also her 2d cousin) to Kenya, where they started a coffee plantation. (credit for 1918 photo made on safari) In Kenya, she led the life that readers would come to know after the by-then-divorced von Blixen returned to Denmark and resumed writing, in English. In 1937, using the pseudonym Isak Dinesen, she published her best-known work, the beautifully written Out of Africa, made into a Hollywood film in 1985. In 1962, Blixen/Dinesen died at the estate where she'd been born 77 years earlier.

(Prior April 17 posts are here, here, here, here, and here.)

Read On! ICL Interest Group Newsletter

The International Criminal Law Interest Group for the American Society of International Law, chaired by Shahram Dana, Charles Jalloh, and IntLawGrrl Beth Van Schaack, and of which I, Margaret Zimmerman, am delighted to serve as Newsletter Editor, has released the Spring 2012 Issue of Accountability.  This issue of Accountability opens with a dedication to an individual who has shaped modern international criminal justice immensely and remains unmatched in its academic world. In tribute to Judge Antonio Cassese (below left), who passed away in October 2011, the first section of this issue reviews the world of international tribunals paying particular attention to the ICTY and the ICC. The second section of this issue turns towards the domestic trends of universal jurisdiction and jus cogens crimes in national courts. Judge Cassese spent a lifetime elevating the scholarship of international criminal law and this issue of Accountability serves to reflect the ongoing discussions of the field continued by the ASIL ICL Interest Group.

In his in memoriam piece, Jens David Ohlin outlines the accomplishments of Judge Cassese in his roles both as a practitioner and academic of the law. Ohlin provides us with a brief yet moving reflection on the contributions of Judge Cassese to the various tribunal benches on which he sat and landmark decisions in which he took part. Ohlin continues through Judge Cassese’s role with the ICC and its investigation in Darfur and ultimately he latest positions with the Special Tribunal for Lebanon.The latter half of Ohlin’s dedication notes only a few of Judge Cassese’s monumental publication sand the academic legacy he leaves behind.

In their articles, Gentian Zyberi and Joseph William Davids continue to explore the impact of the ICTY. In his piece which summarizes the ICTY Global Conference which took place in November 2011, Zyberi outlines the discussions amongst judges, organizations, and academics regarding both the substantive and procedural influence the ICTY leaves on international criminal justice. Davids explores more in-depth the issue of enforcement at the ICTY as regards contempt judgments. Specifically, Davids analyses the case of Ms. Florence Hartmann (right) and argues that the time and resources involved in contempt proceedings outweigh the benefits achieved from punishing contempt of court at the international level. Konstantinos Magliveras in the next article in this issue of Accountability reflects on the ICC's recent arrest of Saif Al-IslamGaddafi and presents the debate surrounding the proper jurisdiction, whether national or international, for his trial and accompanying questions regarding his extradition.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

The ICC’s decisions will con­tinue to play a pivotal role in Kenya’s political process, especially in the crucial 2012 election. The court appears cognisant that these will not be viewed by many Kenyans simply as legal decisions and that the timing and framing of proceedings and rulings will inevitably have an impact in heightening or tamping down tensions.

-- "Kenya: Impact of the ICC Proceedings," an International Crisis Group briefing paper released earlier this month, in anticipation of the any-day-now issuance of the International Criminal Court Pre-Trial Chamber II decision on whether to go forward with charges against a half dozen Kenyan politicos, known colloquially as the "Ocampo Six." IntLawGrrls' many posts on this case – which arose out of violence after December 2007 elections in Kenya – are available here. (And see this interesting story from Nairobi on challenges prosecutors faced in assembling the case.)

UPDATE: The Pre-Trial Chamber's announced that it will deliver its decision on confirmation of charges in the Kenya case this Monday, January 23, at 11:30 a.m. Hague time this Monday, January 23; Prosecutor Luis Moreno-Ocampo has scheduled a press conference on same the following day at noon Hague time. Both events may be viewed via live webcast in English or French; links available here and here.

Libya complementarity challenge at the ICC

No news yet on how the complementarity challenge involving the Libyan situation will be resolved. The Court has now given Libya's new leaders two more weeks to decide how to proceed.
Incidentally, this approach to complementarity has been controversial, and some academics have argued in favor of a “hard mirror thesis.” According to this approach, where exact crimes cannot be charged, a state should be deemed “unable” to prosecute and thus the ICC should go forward.
As we've previously discussed (see here and here), prior to the holidays, a tug-of-war began between the International Criminal Court and Libya’s new Transitional National Council (TNC) over who would prosecute the two surviving suspects of the Security Council referral:

• Saif Al-Islam Gaddafi (son of the deceased Muammar Gaddafi, and de facto Prime Minister) (below left)
  
• Abdullah Al-Senussi (former head of military intelligence) (below right)

The Chief Prosecutor, Luis Moreno Ocampo, got himself in a bit of trouble by implying that he was fine with the Libyans prosecuting the two accused. The Pre-Trial Chamber, in an unprecedented move, immediately issued a press release reminding him and the world both that the Court was now seized of the matter in light of the outstanding arrest warrants against the two men and that it would ultimately decide the outcome of the referral. Although the fate of both defendants is at issue, the TNC seems most concerned with maintaining jurisdiction over Qaddafi fils. Indeed, there has been little firm evidence that Senussi is actually in government custody. If he is, he is being held incommunicado as the ICRC has apparently only visited Saif.
This complementarity impasse may result in a number of potential outcomes under the terms of the Statute:

1. A Complementarity Challenge
Following in Kenya’s footsteps, the new government of Libya could launch a formal complementarity challenge to the admissibility of the one or both case. In the alternative, the Court could initiate an admissibility determination on its own motion. (Amnesty International, for one, has advocated the latter course of action.)
Under either scenario, Libya, to retain jurisdiction, will have to demonstrate that “concrete investigative steps”have been undertaken with respect to Saif and with regard to the same conduct covered by the arrest warrant against him. If Libya meets this burden, the ICC should deem the case inadmissible and stand down, subject to some monitoring to ensure that the proceedings are genuine.
One hitch in reaching this outcome is that Libya has no crimes against humanity legislation on its books, according to Amnesty International's recent study of national atrocity crimes legislation, although Libya does have a penal code containing relevant ordinary crimes and some war crimes.

Just asking

Anyone else see a disconnect between the mandate of U.N. Security Council Resolution 1970 and yesterday's sojourn of Sudanese President Omar al-Bashir in Libya?
As reported by the BBC, Libya's government extended a "welcome" to Bashir (far left). That government's leader, Mustafa Abdul Jalil (near left), went so far as to appear at a joint press conference with Bashir. (credit for AP photo by Abdel Magid Al-Fergany)
That government would be the Transitional National Council, now in power after the ouster of Muammar Gaddafi, the longtime Libyan leader who, at the time of his grisly death last year, was the subject of an international arrest warrant.

So too is Bashir.

As readers well know, the International Criminal Court has sought custody of Bashir since 2009, on charges of genocide and other international crimes in Darfur, Sudan. But pleas for cooperation in arresting the incumbent-cum-fugitive have fallen on deaf ears. Among the deaf: the Security Council, which requested the ICC to investigation in both instances; at least one of its permanent members, China; ICC member states including Kenya (but see newest developments here), Chad, Djibouti, and Malawi.

And now joining the deaf, the very Libyan opposition that profited from international condemnation of the country's former leader.

Query whether Libya's welcome jibes with these paragraphs of the February 26, 2011, Security Council resolution that set in motion the ICC investigation:

Stressing the need to hold to account those responsible for attacks, including by forces under their control, on civilians, ...
Mindful of its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations,
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,
...
2. Urges the Libyan authorities to:
(a) Act with the utmost restraint, [and] respect human rights and international humanitarian law, ...

ICC referral
4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution ....

The name given to Resolution 1970?

"Peace and security in Africa" – a worthy continental goal, sadly undermined by yesterday's welcome.

Intervention at ICC ASP

NEW YORK – In my capacity as Senior Legal Officer for the Open Society Justice Initiative, I spoke yesterday to the Assembly of States Parties to the Rome Statute of the International Criminal Court that is now holding its tenth annual meeting at U.N. headquarters. (photo credit)
IntLawGrrls have covered the meeting in posts available here -- among them, a guest post by ICC Prosecutor-Elect Fatou Bensouda.
My own remarks to the Assembly are here:

As noted by others here, huge changes are coming to the ICC within the next few months alone. The Court will soon be led by an experienced prosecutor from Africa, six new judges will be sworn in and correspondingly, six judges who have rendered key decisions on issues such as intermediaries, proofing witnesses, victim participation and witness protection, and the confirmation of charges, will be leaving the court; the leadership in the Assembly of States Parties is changing; the Court’s first Trial Chamber Judgment will be issued in the Lubanga case; and the court will begin proceedings against its first former head of state. These significant changes could potentially result in the court heading in far different directions than the course that’s been charted over the past ten years.
The Open Society Justice Initiative has been working on the ICC since its inception, and in these brief remarks, I’ll simply highlight two areas we’ve been engaged with intensely for several years: intermediaries and complementarity.

Intermediaries
Intermediaries are critical to the Courts operations and in fulfilling its mandate, and these individuals or organizations assist various organs of the court. The Justice Initiative began working with and as intermediaries in the Democratic Republic of Congo in 2003. Since that time, particularly as the Lubanga trial unfolded, we have focused considerable attention on the need for guidelines in dealing with intermediaries. To this end, we urge:
► The ASP President to appoint an intermediaries facilitator through The Hague Working Group to assist in finalizing the ICC Intermediaries Guidelines and monitor their implementation to make suggestions for improvement where necessary;
► The ASP to give due consideration to the ICC Intermediaries Guidelines and adopt the Guidelines at the earliest opportunity;
► The ICC to utilize the ICC Intermediaries Guidelines to inform their interactions with intermediaries at least during 2012 pending adoption at a forthcoming ASP and to ensure the Guidelines are subject to an on-going monitoring process, involving both the Court, intermediaries and external experts to ensure the Guidelines are effective achieving their aims in managing the partnership with intermediaries.
Next month, the importance of intermediaries and dealing appropriately with them is expected to be a very fundamental issue in the Lubanga Judgment.

Complementarity
Turning to complementarity, it too is a topic that is critical to the success of the Court and for ending impunity for mass crimes. In 2008, the Open Society Justice Initiative first began working in concrete terms on assisting domestic jurisdictions in their willingness and ability to prosecute atrocity crimes. As I've posted, we began the process of designing and implementing a mobile gender justice court in eastern DRC, to provide some measure of justice to the tens of thousands of women and girls victimized by war and impunity. (See too this post.) Since then, the Justice Initiative has been analyzing complementarity options in other places, such as Kenya and Uganda.
On Monday, we launched a handbook on complementarity, titled International Crimes, Local Justice, which represents an attempt to bridge the gap between international justice and rule of law communities and to demonstrate how complementarity can be implemented once decisions are made to prioritize it.
To this end, it is important that the ASP educate development agencies, embassies on the ground, national governments, and civil society about the importance of local justice systems holding fair trials for international crimes. It can convene the relevant actors needed to address complementarity effectively, and its secretariat can promote the exchange of information between those on the ground who can best identify complementarity needs with those in capitals most familiar with knowledge of available expertise and resources.

In Seychelles, in pursuit of pirates

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

VICTORIA – Greetings from the Seychelles!
Along with Professor Michael Scharf of Case Western Reserve University School of Law and Sandra Hodgkinson, Distinguished Visiting Research Fellow at National Defense University, this week I have been engaged in meetings with the Seychelles’ Attorney General and members of the judiciary about the ongoing Somali pirate prosecutions in the Seychelles’ courts.
Mike, Sandy, and I form a delegation representing the Public International Law & Policy Group, a Washington, D.C.-based global pro bono organization. (pictured below, Sandy, left, and I outside The Pirate Arms)
PILPG recently began work in the area of Somali piracy, through the creation of its Piracy Working Group. Mike, Sandy, and I, along with a number of other distinguished academics, practitioners, and conflict resolution experts, are all members of a High-Level Expert Group, and we have traveled to the Seychelles with a two-fold mission:
► First, we have presented the Seychelles’ Attorney General, Ronny Govinden, with copies of eighteen legal memoranda, addressing various legal issues related to Somali piracy.
The memoranda have been written by law firm associates and law students who work for law firms and legal institutions which form the Expert Group’s consortium of academic partners. In fact, since its inception in May 2011, the Expert Group has identified pertinent legal issues related to Somali piracy, and has outsourced the research and writing of legal memoranda on such topics to our law firm and academic partners.
Thus, here in the Seychelles, we have officially entrusted this tiny nation’s prosecutors with the fruit of our research. It is our hope that the legal memoranda will prove useful in the short future, as several Somali pirates already have been prosecuted, and additional pirates are awaiting trial in the Seychelles’ domestic courts.
The legal topics covered by the memoranda range widely – from basic issues, such as the applicability of 1982 U.N. Convention on the Law of the Sea and customary law to piracy incidents off the coast of Somalia, to more specialized discussions on, for example, relevant international regimes related to the freezing both of piracy financiers' assets and of financial gains derived from piracy.
► Second, we reached an oral agreement with the Attorney General through which his office will establish a long-term cooperation and collaboration relationship with PILPG. Mainly, the Attorney General’s office will continue to request legal memoranda from PILPG on various piracy topics, as they arise in future prosecutions.
The Attorney General was able to identify several new topics of interest during our meeting, and he was very enthusiastic about the prospect of future collaboration, which would tremendously strengthen ongoing piracy prosecutions. The Attorney General’s office has a small staff and limited resources; thus, any research assistance by PILPG will be immensely valuable toward supporting piracy prosecution.
It is becoming obvious that the Seychelles’ government is a key player in the global fight against Somali piracy, and that Seychelles’ national courts are an appropriate venue for pirate prosecutions.
Until recently, as discussed in prior IntLawGrrls posts on piracy available here, captured Somali pirates were routinely released because of a lack of viable prosecution options. Major maritime nations which patrol the Gulf of Aden and other waters in the Indian Ocean seem uninterested in prosecuting captured Somali pirates, in their domestic courts, on a true universal jurisdiction model. Piracy prosecutions are logistically difficult, politically unpopular, financially costly, and may even ultimately result in the prosecuting country’s obligation to grant pirates political asylum upon the completion of their prison sentence. Thus, unless national interests of such maritime nations are directly threatened by a piracy incident, major maritime powers are generally not prone to setting up domestic piracy trials.
Over the last few years, Kenya has been identified as a stable regional partner, capable of conducting fair pirate prosecutions in a specialized domestic court in Mombasa. Thus, several countries concluded transfer agreements with Kenya, whereby Kenya would prosecute Somali pirates upon their transfer by the capturing state to Kenyan authorities. Alas, Kenya seems ambivalent about the prospect of accepting more Somali pirates in the future – the Kenyan authorities have indicated that they no longer wish to participate in such transfer programs. While more than a hundred Somali pirates await trial in Mombasa, Kenyan authorities suggested that no additional pirates will be transferred to Kenya in the future. While there are reports that Kenya may revert to its original position of willingness to prosecute pirates, nobody is certain as to what the Kenyan government will ultimately decide.
Hence the need to identify another stable regional partner, like the Seychelles.
The Seychelles are a group of relatively small islands in the Indian Ocean. (map credit) While not in direct proximity of Somalia, the Seychelles have nonetheless been negatively influenced by the development of piracy in this region. Pirate attacks have intensified and proliferated geographically, and Somali pirates have attacked boats and yachts sailing close to the Seychelles’ waters.
Moreover, the Seychelles derive most of their national revenue from tourism. (Pictured at right, a 100-year-old sea turtle at a Seychelles sanctuary; they used to be everywhere but today most live in captivity (sadly).) Any criminal activity taking place close to the Seychelles, like Somali pirate attacks, has the potential to deter tourists attracted to the Seychelles’ beaches and pristine turquoise waters and to thus undermine the development of tourism in this otherwise isolated region of the world. Thus, it will be in the interests of the Seychelles’ government to drastically reduce the number of pirate attacks in these waters.
Prosecutions in the Seychelles’ courts, pursuant to transfer agreements like those that have been in place in Kenya, constitute an important step in ensuring that pirate attacks do not go unpunished.
The Seychelles’ Attorney General confirmed to us the existence of transfer agreements between the Seychelles and the European Union, as well as the United Kingdom. Pursuant to these transfer agreements, the Seychelles has accepted pirates detained by the EU or UK forces on the high seas. Eleven successful piracy trials have already taken place, and 51 pirates have been convicted in the Seychelles’ courts. Several other pirates are currently detained and awaiting trial.
Finally, we ended our visit with a meeting with two members of the Seychelles’ judiciary. One of these two judges, Seychelles Supreme Court Justice Duncan Gaswaga, head of that Court's Criminal Division, has presided over several piracy trials, and was kind enough to show us two courtrooms which are currently being used for piracy prosecutions. (at left, front of Supreme Court, among the oldest buildings on Mahé, the Seychelles' largest island, on which is located the capital, Victoria; and Mike Scharf and I at the Court)
We explored the possibility of future assistance by PILPG to the Seychelles’ judiciary, in the form of amicus briefs or other research memoranda useful to support judges in their efforts to preside over piracy trials.
The trip was successful, and it will be my pleasure to report more on the topic of Somali piracy upon my return to the United States.

All eyes on

Civil-society satellites are said to have aided an International Criminal Court prosecution.
So reports Time magazine in an article entitled "George Clooney's Satellites Build a Case Against an Alleged War Criminal."
Keeping eyes on developments in Sudan for the last 12 months has been, as we posted when it launched, the Satellite Sentinel Project. Started to monitor the referendum that led to establishment of South Sudan as the newest U.N. member state, this past year the Project has posted aerial images of violence in the Sudan region. (credit for detail at right, from a Project array of before-and-after photos, dated June to August 2011, and captioned "Apparent mass grave below Kadugli welcome sign: Kadugli, The Town of Love and Peace") The Project has tweeted and retweeted Sudan news, and has released findings to the media.
And, it appears, to the ICC.
Time reporter Mark Benjamin reported that he'd obtained an "internal ICC investigation division memo" indicating that "a significant portion" of the ICC's investigation against its newest suspect "is based on data from the Satellite Sentinel Project."
The newest suspect is Sudan's Defence Minister, Abdel Rahim Muhammad Hussein, against whom ICC Prosecutor Luis Moreno Ocampo sought an arrest warrant last Friday. Should the Pre-Trial Chamber grant the request, Hussein would join Sudan's incumbent President Omar al-Bashir as an accused-at-large. (The ex-head of state of Côte d'Ivoire made his 1st appearance before the ICC yesterday, even as developments in Kenya indicated a shrinking of the range in which Bashir may roam.) The Defence Minister is alleged to have ordered security forces to attack Darfuri civilians.
Something's curious about Benjamin's story, however: the charged attacks occurred in 2003 and 2004.
That's years before the Satellite Sentinel Project began. As indicated by the Kadugli photo above, moreover, the Project's focus is on developments in the south, while the region of Darfur, in yellow below, extends south and north along Sudan's western border. (map credit) It was events in Darfur, from 2002 onward, that prompted the UN. Security Council, in Resolution 1593 (2005), to refer the situation in Darfur to the ICC.
Not surprisingly, therefore, Benjamin's article continues:

The fact that the ICC is investigating Hussein's role in possible atrocities in the South does not necessarily mean he will face arrest for any actions there.

Keep looking to see if the Sentinel Project's eyes-in-the-skies images surface in an actual ICC proceeding -- and if so, how issues regarding the data are litigated.

In passing: Wangari Maathai

(In passing marks the memory of a person featured in IntLawGrrls)

Dr. Wangari Maathai (left) succumbed Sunday to ovarian cancer at a hospital in Nairobi, Kenya.
She'd been born on April 1, 1940, in Nyeri, a foothills district in the same country.
After earning a biology degree as a scholarship student at a small college in Kansas, followed by a master's degree at the University of Pittsburgh, she went on to become the 1st woman in East or Central Africa to earn a Ph.D. -- in veterinary anatomy, from the University of Nairobi.
Maathai there served as a professor and department chair in the 1970s.
Toward the end of the same decade she founded the Green Belt Movement, which she founded in 1977. Its mission:

to mobilize community consciousness -- using tree planting as an entry point -- for self-determination, equity, improved livelihoods and security, and environmental conservation.

For her efforts Maathai, about whom we've posted on numerous occasions, was awarded the 2004 Nobel Peace Prize. (photo credit) She is the only African woman to have been so honored.
In her Nobel Lecture, Maathai said:

Activities that devastate the environment and societies continue unabated. Today we are faced with a challenge that calls for a shift in our thinking, so that humanity stops threatening its life-support system. We are called to assist the Earth to heal her wounds and in the process heal our own – indeed, to embrace the whole creation in all its diversity, beauty and wonder. This will happen if we see the need to revive our sense of belonging to a larger family of life, with which we have shared our evolutionary process.
In the course of history, there comes a time when humanity is called to shift to a new level of consciousness, to reach a higher moral ground. A time when we have to shed our fear and give hope to each other.
That time is now.

As this passage indicates, her efforts extended well beyond the narrowest confines of environmentalism. In one of her later public statements, she endorsed the work of the International Criminal Court, an international organization subjected to considerable scrutiny in Maathai's native Kenya.
Tributes to Maathai from world leaders, including Barack Obama, Mary Robinson, and Nelson Mandela, may be found here.

ICC Update on Kenya Situation

An additional update on the Kenya situation before the ICC is in order, given some developments earlier this summer. (See Jaya Ramji-Nogales's prior post on Kenyan preferences vis-a-vis the ICC here).
By way of background, the Pre-Trial Chamber (PTC) authorized the Prosecutor to commence a proprio motu investigation into the situation in Kenya on March 31, 2010. A year later, the Chamber issued arrest warrants against the so-called Ocampo 6: William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali (pictured in the composite below left). In an effort to bolster its admissibility challenge and complementarity arguments, Kenya requested assistance from the ICC in its internal investigations pursuant to Article 93(10) of the ICC Statute, as we’ve previously discussed. This request was filed several weeks after the government launched an admissibility challenge to the opening of the investigation. Article 93(10) reads in part:

The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.

The operative rule, Rule 194, clarifies that requests can be transmitted to either the Prosecutor or to the Chamber concerned. In its request, Kenya sought copies of all statements and other evidence obtained by the Court and the Prosecutor in the course of the ICC investigations into the post-election violence. In particular, the cooperation request stated that the government intended to:

use the materials requested expeditiously to advance its national investigations into all allegations of Post-Election Violence, including those in respect of the six suspects who are presently before the ICC.

Incidentally, during this exchange, the defendants filed various views in the matter. The PTC ruled that the defendants lacked procedural standing with respect to these proceedings; accordingly, their filings, and the Prosecutor’s response thereto, were disregarded.
The government had asked that relief be granted on the cooperation request prior to the court’s ruling on the admissibility challenge. The PTC nonetheless ruled on the admissibility challenge this past May 30, and determined that there was no link between cooperation issues in Part IX of the Statute and the issue of admissibility in Part II. On the substance of Kenya’s challenge, the PTC welcomed Kenya’s express will to investigate post-election violence, but ultimately determined that Kenya had undertaken

no concrete steps showing ongoing investigations against the three suspects in the present case.

It rejected the government’s contention that it was enough that the government was investigating “persons at the same level in the hierarchy” of the defendants before the Court, even if this were in fact the case. Rather, the PTC ruled, it must be shown that the national authorities were investigating the same persons for the same conduct that were under investigation before the ICC. In advancing this hierarchy argument, the PTC wrote, the government erred in its briefs by drawing on the admissibility standard relevant at the time of determining whether to allow the opening of an investigation into a situation, which happens earlier than the current proceedings which involve a particular case. The PTC confirmed that the test of admissibility is more specific when one or more suspects have been identified. In sum, the PTC found that the Government’s submission mainly considered judicial reform actions and promises for future investigative activities—activities that, while welcome, were insufficient to render the cases inadmissible at this time. Given that admissibility must be determined "on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge", the challenge must fail.
On June 29, the PTC ruled on the cooperation request. As a matter of statutory construction, it determined that it could not order the Prosecutor to provide any evidence in his possession. It could only provide materials already in the Chamber's possession, as where the material has been submitted to it by the Prosecutor through the process of disclosure. In addition, the PTC ruled that the requesting State Party must be able to show that it is conducting an investigation into conduct that constitutes “a crime within the jurisdiction of the Court or a serious crime under the national law of the requesting State” as provided by Rule 93(10). Not surprisingly given the prior admissibility ruling, the PTC concluded that the government's cooperation request was unsubstantiated and was thus denied.
These decisions are under appeal.
The admissibility discussion raises an interesting doctrinal point about what level of concurrence must exist between the substance and reach of domestic proceedings as compared to proceedings contemplated before the ICC. The PTC is operating under the same person/same conduct test that has never been expressly ratified by the Appeals Chamber (although the Chamber has had occasion to reject this test as well and it has not done so).
For our readers interested in the Kenya case in particular, I can highly recommend this blog, which is dedicated to the Kenya cases. The blog is the work of our colleague James Gathii (right), who is the Associate Dean for Research and Scholarship and the Governor George E. Pataki Professor of International Commercial Law at Albany Law School.

Measuring Kenyan Preferences

Having spent this week knee-deep in surveys and reports on Kenyans' preferences concerning the International Criminal Court, I've been struck by the wealth of material that's been generated in three short years. The process created and materials generated by the Kenya National Dialogue and Reconciliation (KNDR), managed by the United Nations Development Programme and funded by numerous donors, offer a promising model for transitional justice efforts of all types.
A little background to begin: to put an end to the post-election violence in Kenya in late 2007 and early 2008, the African Union Panel of Eminent African Personalities brokered a peace deal between the two main political parties (PNU, Party of National Unity, and ODM, Orange Democratic Movement). In February 2008, the parties established the KNDR framework, with four agenda items: Stopping the violence and restoring fundamental rights; addressing the humanitarian crisis and promoting reconciliation and healing; overcoming the political crisis; and addressing long-term issues, including constitutional, legal, and institutional reforms. The KNDR Monitoring Project, funded initially by the Open Society Institute, was created in 2008 to monitor implementation of these goals.
The KNDR Monitoring Project has issued ten reports, both qualitative and quantitative, measuring the implementation of the KNDR agenda items. The country's progress is palpable as one reads the reports. The first, in January 2009, focusing on Agenda Item One, surveys Kenyans as to whether the political violence has stopped. (Though 60% of respondents said violence had decreased since just after the 2007 election, while 70% of those surveyed said their life was worse than it was just after the 2007 election.) The most recent survey, from June 2011, finds that 50% of the respondents feel safer than they did just after the 2007 general election.
One of the most interesting findings is the initially broad popular support for ICC prosecutions, and the shifts in public perceptions as time passes. In December 2010, 78% of those surveyed were very or somewhat happy that the ICC was investigating perpetrators of the post-election violence. More to the point, 54% thought that violence would erupt if the ICC failed to charge any suspects for post-election violence. And 66% said that Kenyan communities had reconciled "just a little" after the post-election violence. By June 2011, only 51% of those polled were happy that the ICC was pursuing the "Ocampo 6" while 38% were unhappy with this development. Just 32% of respondents thought that violence would erupt if the ICC failed to charge an suspects for post-election violence, and 35% believed that the "Ocampo 6" should be tried by a local tribunal in Kenya.
Some of the differences in responses may be due to changes in the wording of the polling instrument, but one might also infer that as the political situation in Kenya stabilizes, support for ICC prosecutions wanes. What's behind this preference shift? Does it represent progress towards restoring, and perhaps a new-found faith in, Kenya's justice system? Or is it simply that as time passes without further violence and the struggles of daily life resume, Kenyans' appetite for accountability loses its force? With a new constitution promulgated a year ago, one might argue the former, but with 68% of respondents in June 2011 finding the high cost of living to be the most serious problem facing Kenya today, the latter is a significant possibility.

Taking the long view: Responsibility to protect, in Libya and beyond

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

In a watershed moment in international policymaking, there has been a clear declaration: there is a "responsibility to act" in the face of mass atrocity, to quote President Barack Obama's speech of March 28 on Libya.
But what is being done in Libya to uphold this responsibility must not be seen as the poster child of responsibility to protect, the evolving international principle/norm about which IntLawGrrls frequently have posted.
The responsibility to protect doctrine undoubtedly inspires this administration. Yet responsibility to protect is not fully encapsulated by its actions or words on Libya.
Responsibility to protect was, until recently, largely absent in public discourse.
As set forth in paragraphs 138-139 of the 2005 World Summit Outcome, responsibility to protect asserts that states have a responsibility to protect their populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. When they fail to do so, the doctrine holds, the international community has the responsibility to act using all peaceful measures, with military intervention as a last resort. U.N. member states unanimously adopted responsibility to protect in a General Assembly Resolution in 2005, and the concept has developed significantly since then.
Measures to address allegations of mass killings of civilians by forces loyal to Libyan leader Muammar el-Qaddafi began with economic sanctions and travel bans. It was only when these measures failed to stop Qaddafi’s “no mercy” policy that the exceptional last resort of U.N. Security Council military action become a reality.
The effectiveness of using these measures in Libya remains open to debate. But it is purely positive that a number of world powers have reacted to protect innocent lives, in the face of the reality and threat of continuing massacres in Libya.
The public discussion of responsibility to protect in the context of Libya, however, has the unfortunate consequence of associating the concept solely with military intervention -- an intervention that is likely to be exercised rarely and only by Western nations against states outside their direct sphere of influence. To associate responsibility to protect exclusively with military intervention is a grave mistake; it will undermine the power and reach of this moral principle, and add to both the illegitimate and legitimate fears of many states about foreign invasion.
Responsibility to protect doctrine makes clear that successfully protecting populations from mass atrocities requires a continuum of actions by states: The continuum includes:
► Preventing mass atrocity;
► Reacting to the threat or mass atrocity taking place; and
► Rebuilding, which encompasses “a genuine commitment to helping to build a durable peace…”
Viewing responsibility to protect through the narrow lens of Libya obscures its primary commitment to "militaryless" prevention of mass atrocities. As with any successful act of prevention, success in averting civilian deaths leads to a lack of media coverage and further associates responsibility to protect exclusively with military intervention.
Responsibility to protect has been evolving and implemented to greater effect, before Libya:
► Fears over potential atrocities in South Sudan this year were actively averted by a variety of international and national actions.
► The prevention of a return to serious violence in Guinea in 2010, following the massacres of 2009, was also a successful invocation of responsibility to protect without military interventions.
► The same was true in Kenya after the 2008 elections, when swift international diplomacy averted mass atrocity.
These are instances in which the responsibility to protect principle will be most effective, in which states act to prevent mass atrocity without ever needing to get to the last resort of military action, a last resort that can only be fraught with moral, legal and political conundrums.
The nature of the news cycle and its appetite for major conflict often results giving violence greater attention than prevention of violence. The success of the moral principles embodied in the universal pledge to respect responsibility to protect will depend on ensuring that images and strategies of peaceful prevention -- and not, primarily, of military action -- are emphasized in utilizing the principle of the responsibility to protect.
Resort to military intervention will and should remain the exception not the rule.
We should wholeheartedly welcome the growing recognition that there is a global interest—indeed responsibility -- in preventing tyrants from committing mass atrocities. But let us not lose sight of the forest for the trees. Let us take the long view in Libya and beyond.

(My thanks to Daniel Stewart, Visiting Lecturer and International Human Rights Clinical Teaching Fellow with the Human Rights and Genocide Clinic at my home institution, Cardozo Law; he contributed significantly to this post)

Expanding HIV Prevention in Africa

Though much effort has been expended to protect female sex workers in Africa from HIV exposure, the same cannot be said for male sex workers in the region. The stigma that continues to attach to homosexuality in many African countries drives many male sex workers deep underground, leaving this group particularly vulnerable to HIV and other STDs. Researchers from the United Nations Development Program and the South African NGO SWEAT, in conjunction with the African Sex Worker Alliance, aim to change this state of affairs with the release of their new report on the situation of male sex workers in Kenya, Namibia, South Africa, Uganda, and Zimbabwe.
Beyond basic assessments of barriers to care and inclusion in current HIV prevention and rights advocacy strategies for female sex workers, the report suggests that male sex workers need specifically targeted social support, health education, and HIV prevention programs. Though the research highlights the particular needs of transgender sex workers, it does not focus on this group, and suggests this as one of many areas for future study. The study relies on a qualitative or narrative methodology, with data drawn from discussions with two sets focus groups, one with activists and advocates from all five countries and another with male sex workers in Kenya and Namibia.
The stories of these male sex workers tell of a life of exclusion and marginalization in cultures hostile to homosexuality. For many, sex work started as a means of survival when they realized they were gay and were either rejected by or moved away from their families. For most, however, sex work did not lead to financial security, but provided just enough money to live on and pay rent without the ability to save. Many reported unsafe sex, at times by force, at times because clients were willing to pay more money for sex without a condom. In seeking support, the male sex workers who participated in the study said that they were often excluded from efforts to assist female sex workers and even from LGBTI movements. For many, sex work offers an identity and a sense of belonging to a specific sub-culture.
The report also catalogues the very limited studies of African male sex workers that have been performed to date, largely in Kenya. This research found that many young male sex workers did not consider themselves at risk of contracting HIV and other STDs. Those who did were inclined to self-treat because of prejudice on the part of health care providers. This bias is further detailed in the UNDP/SWEAT report, including refusal by health providers to treat male sex workers and little effort to maintain private health information such as HIV status. The Kenyan studies also found that male sex workers were disinclined to report sexual abuse or violence because of prejudice on the part of police. Again, respondents in the the UNDP/SWEAT study reported significant violence, often sexual and unprotected, perpetrated by police officers.
The health risks for male sex workers created by their exclusion from HIV prevention programs are obvious and significant. But these dangers extend throughout society. Without protecting these men, any effort to protect female sex workers and others from contracting HIV appear doomed. Respondents reported that male sex workers often work with truck drivers, many of whom also have sex with female sex workers and presumably their wives in their home villages. One respondent told the story of a male sex worker who sells sex in a port town but lives as a heterosexually married man in his home village. Other male sex workers reported that it can be difficult to tell their intimate partners about their sex work and thus to get them to use condoms. Including male sex workers in HIV prevention efforts in Africa is not only the right thing to do, but also vital to sound public health policy.

(photo credit)

What can the ICC do for Kenyan IDPs?

The victims of Kenya's 2008 electoral violence have largely celebrated the International Criminal Court's investigation of six alleged perpetrators/leaders, as evidenced in the popular chant, "Don't be vague, go to the Hague." Given the lack of political will to account for these crimes in Kenya, their position is well-founded. But will the ICC be able to deliver justice to these Kenyans despite the intransigence of their government? One angle of the crisis is of particular interest to yours truly: the situation of the internally displaced.
In the Kenya cases, the prosecutor has accused all six of the defendants of forced displacement as a crime against humanity. The Pre-Trial Chamber will hold confirmation of charges hearings on September 1; if it includes forced displacement in those charges, this may be the first time this crime is to be prosecuted under the Rome Statute. The court's attention to the forced migration aspect of the crisis is crucial, particularly given the dimensions of the problem and the Kenyan government's failure to address it adequately.
During the violence, some 600,000 Kenyans were forced to flee their homes, and an estimated 250,000 Kenyans are currently internally displaced. The conditions faced by IDPs are dire. They lack shelter, food, and safe drinking water, and suffer from high rates of sexual and gender-based violence. Yet the Kenyan government's response to the internal displacement problem has been "poorly conceived, organized, and timed" and further hamstrung by a lack of sufficient resources. And with the 2012 elections looming, the attention of political elites is now focused on other questions than the situations of IDPs.
Assuming sufficient evidence, charges and convictions on the grounds of forced displacement would be a powerful first step towards recognizing the harms suffered by the internally displaced in Kenya. But charges and convictions alone will not improve the lot of Kenyan IDPs, and given the track record of the Kenyan government, are not likely to spur domestic institutions to address their woes. The ICC might, however, act as a catalyst in encouraging others, including its own Trust Fund for Victims, to play a role in addressing the situation of Kenyan IDPs. The court is often criticized for leaving little airspace for other important causes, yet in this situation and others, it has the power to draw attention to dimensions of crises that might otherwise be overlooked and encourage others to step in where it has left off.