'Nuff said

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

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'On this first International Day of the Girl, and for the sake of all victims of international crimes, I call again on the international community to execute these outstanding arrest warrants to put an end to their victims’ plight.'

– International Criminal Court Prosecutor Fatou Bensouda, in a statement calling for the capture of certain ICC fugitives – Omar al-Bashir, President of Sudan, and Joseph Kony and Bosco Ntaganda, warlords in, respectively, Uganda and the Democratic Republic of Congo – as a tangible means to advance justice on this 1st-ever, U.N.-declared International Day of the Girl Child.

An African Union 1st

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A weekend summit ended in the wee hours today, and from it emerged the 1st woman leader of the African Union.
She is Dr. Nkosazana Dlamini-Zuma (right), a physician and longtime public official in South Africa. Dlamini-Zuma narrowly won in her contest against the incumbent Chair of the African Union Commission. That would be Gabon's Jean Ping, an outspoken opponent of the International Criminal Court.
The election marked the 2d go-round for these candidates: as we then posted, in January neither garnered the necessary 2/3 vote. As late as this weekend, continued impasse seemed likely, with voting seemingly divided between the English- and French-speaking portions of Africa. The report of "'a definite sense of relief'" after Sunday's vote thus come as no surprise.
Addis Ababa, Ethiopia, was the site of this year's summit. It had long been set for Malawi, but the AU pulled out after that country made clear that Sudan's President, Omar al-Bashir, was not welcome to come and go on account of his indictment by the ICC. (prior post)
The summit, indeed, began with talk of the ICC, the permanent court launched at Rome 14 years ago today. It too has new leadership, including Prosecutor Fatou Bensouda of Gambia, sworn in just 4 weeks ago.
Specifically, there was a proposal to give criminal jurisdiction to Africa's regional human rights system. One report quoted Justice Gérard Niyungeko of Burundi, the President of the African Court on Human and Peoples' Rights, as saying:

'An African court trying Africans will be more aware of the cultural, social environment and context of the crimes themselves.'

In a separate report, a representative of a Kenya-based NGO was quoted very differently; he called the plan "a sideshow that will not succeed." No post-summit reports indicate that the idea came to a vote at Addis Ababa, in any event.
All this provokes a question that only time will answer:

Will the advent of a new AU leader and a new ICC Prosecutor jumpstart a new relationship between the two institutions?

Bensouda on Bashir & Bosco (& Barack)

A lot of "B"s in one interview playing today at the Beeb.
Interviewed was Fatou Bensouda, who will become Chief Prosecutor of the International Criminal Court on July 1.
Karen Allen of the BBC  talked with Bensouda on the fringes of a conference in Cape Town, South Africa. Africa and the ICC, a theme on which we've frequently posted, thus was at the core of the interview. (Video, from which above image of Bensouda was made, is available here.)
The name of Bashir of course came up. That would be Omar al-Bashir, who has remained President of Sudan despite the years-old ICC warrant for his arrest. Some countries that belong both to the ICC and the African Union have allowed him safe passage; recently, one of them, Malawi, has reversed course and sought to ban Bashir.
On this, Bensouda said:

'[T]he step that Malawi has taken is very encouraging. We have of course had other African countries that have done similar things. I think Botswana has been very consistent in the position of arresting Bashir if he were to go to Botswana.
'But I also want to make one thing clear. What is out there in the media, mostly, is that African Union is not cooperating with the ICC. And of course there are certain examples why this is said. But I want to say that we have had tremendously good cooperation with individual African states.'

This comment moved conversation to another name, Bosco – Bosco Ntaganda, charged with war crimes when he, like his then-co-accused, Thomas Lubanga, was a Congolese rebel leader. Lubanga awaits ICC sentencing, having been convicted of recruiting child soldiers. Ntaganda managed not just to escape arrest, but also to become a general in the government's army, and so to wield much power. Earlier this month, the ICC added charges against Ntaganda, who reportedly "mutinied" in April and is now forcing children to join his new combat against the government.
On this, Bensouda said:

'[T]hose who have warrants out for them, for their arrest, should be arrested and surrendered to the ICC. This level of "blackmail," which I call it, in which perpetrators are saying that "If you do not drop warrants against me, or if you issue warrants against me, I continue to kill people," I think this is what the international community, especially those who are directly responsible for the arrest of Bosco, should take into account.'

Finally the BBC interview of Bensouda evoked the name Barack – President Barack Obama, who's deployed U.S. troops to Uganda to aid "the removal of Joseph Kony from the battlefield." On this, Bensouda reminded that the ICC relies on states to execute its warrants, including the years-old one for Lord's Resistance Army leader Kony, subject of a NGO-issued viral video, about IntLawGrrls have posted.
On the U.S. role, Bensouda said:

'It is not directly an assistance to the ICC as such, if I may put it that way. It is a request from Uganda, not from the ICC, from Uganda as a state. And also it is a push by Invisible Children on the United States government to do something. ... [T]he Kony 2012 video has done a lot to bring attention to this.'

Asked by the BBC if she thought the United States would ratify the ICC Statute should Obama win re-election this November, Bensouda gave a most politic reply:

'I have refrained from commenting on any state that is not party to the Rome Statute. But I do know that the universality of the court is a good thing for international criminal justice.'

Newest woman head of state pulls Malawi welcome mat away from Bashir

Joyce Banda's been busy in the month since she became the President of Malawi.
Her latest move: on Friday she reversed her country's policy regarding the International Criminal Court.
Last year, during the rule of its former President, Malawi welcomed Sudan's President Omar al-Bashir when Malawi hosted Common Market for the Eastern and Southern Africa summit. (prior post)
But this year the new President, Banda, hid the welcome mat.
A month ago today, Banda was sworn in as the 1st woman in southern Africa to lead her country, and the 3d woman in Africa to be head of state; in this, she follows 2011 Nobel Peace Prizewinner Ellen Johnson Sirleaf, Liberia's President since 2006, and an IntLawGrrls foremother, Zewditu I, Empress of Ethiopia from 1916 to 1930.
Banda has asked the African Union not to permit Bashir to attend a summit set to be held in Malawi later this year.
A representative of Sudan responded that it has a "right" to attend the summit.
Banda explained her requested at a press conference Friday in the capital city, Lilongwe:

'Malawi is already going through unprecedented economic problems and it would not be prudent enough to take a risk by allowing one person to come and attend the summit against much resistance from our cooperating partners and donors.'

Bashir's presence last year, Banda asserted, "cost Malawi US$ 350.7 million from the US Millennium Challenge Corporation meant to rejuvenate Malawi's fledgling power supply." The loss is significant for Malawi, which ranks 171 out of 187 countries measured in the U.N. Development Programme's International Development Index.

The snub of Bashir is one of several bold moves by the woman whom Forbes Africa named the 3d most powerful woman in Africa back when she still was Vice President. (credit for Reuters photo of Banda, with Malawi's flag in background) In these other moves, she:
►  Averted an reported coup plot in the days after her predecessor's death.
►  Moved Britain to re-warm diplomatic relations, which chilled last year.
►  Fired the national police chief, appointed by her predecessor and "accused of instilling a climate of fear including arbitrary arrests and the shooting dead of 19 people during anti-government protests last year."
► Fired the wife of her predecessor; he'd appointed her to a lucrative foundation post.
►  Reaffirmed her commitment to women's rights by referring to her own "'brave'" decision to leave an abusive marriage.
►  Told a reporter:

'You ask how I feel to be the first female president in Southern Africa? If I fail, I will have failed all the women of the region. But for me to succeed, they must all rally around.'

U.S. should embrace inclusive refugee protection

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

You’ve likely heard how the severe drought in the Horn of Africa has created over 150,000 Somali refugees since July 2011, and how tightening immigration policies have restricted their passage to Europe and North America. But were you aware that thousands more refugees have been cared for exclusively by many African countries for nearly half a century?
The United States should recognize these deserving refugees, too.
Last year, I clerked for the U.N. High Commission for Refugees as a University of California Human Rights Fellow in Addis Ababa – the capital of Ethiopia, and the political hub of Africa. (UN map credit)
In July 2011, Ethiopia and the rest of the Horn of Africa began facing a humanitarian crisis brought on by a severe drought in the region. The drought caused an alarming influx of refugees arriving from Somalia. Meanwhile, as a result of violent clashes in the Blue Nile state of Sudan, Sudanese nationals were seeking asylum through Ethiopia's western border – creating the second refugee emergency in Ethiopia last year. Additionally, we continued to receive asylum seekers from Eritrea, the Democratic Republic of Congo, Djibouti and even Yemen.
I managed over 100 refugee cases  – considering the status of refugees, and also helping to provide protection, in the form of resettlement referrals, for refugees who were particularly vulnerable in Addis Ababa, such as women at risk. In addition, I participated in collaborative emergency meetings with representatives from various U.N. agencies and their implementing partners who were responding to the Somali refugee crisis.
Refugee recognition is vital to the protection of human rights. I learned, however, that refugees are defined more broadly in many African countries than by most of the international community. As a result, many refugees – particularly Somali refugees – who were recognized as such by Ethiopian authorities would not have been recognized as refugees under U.S. criteria.
First, some basic refugee concepts should be reviewed.
An asylum-seeker is a person seeking refuge in a foreign country. If she proves to have a well-founded fear of returning to her home country for a qualifying reason, then she may be recognized as a refugee. Importantly, international law forbids the deportation of refugees. However, the definition of a refugee varies in breadth depending on which legal instrument is consulted.

The United States, like most countries in the world, is a signatory to the 1951 U.N. Refugee Convention (as it is incorporated by the 1967 Protocol), which narrowly defines refugees as persons fleeing targeted or discriminatory persecution due to race, religion, nationality, political opinion, and/or membership of a particular social group. (credit for UN photo of signing of 1951 convention)
In 1960, 41 members of the African Union pioneered the way to broadening the definition of a refugee – they additionally signed the Organization of African Unity Refugee Convention. The OAU Convention further extended refuge to people fleeing generalized violence.
With the introduction of the 1984 Cartagena Declaration on Refugees, many Latin American nations also began recognizing generalized violence as a legitimate refugee ground.
But depending on where refuge is sought, those fleeing generalized violence may not have legal basis to protect them against deportation.

New States, Different Responses?

A key tenet of public international law is that states, regardless of their size or wealth, are equal as a matter of law within the international community. This makes the difficulties that claiming entities experience in achieving statehood understandable, since the benefits of being recognized as a state are of such gravity.
The Montevideo factors – the most universally accepted set of standards for determining statehood claims and status – establish four factors that must be met in order to achieve statehood in the eyes of the international community. These factors are: 1) a determined area, 2) a settled population, 3) an effective government, and 4) the capacity to enter into international relationships. On their face, these requirements seem quite simple, however in application they are anything but. Ultimately, it can be argued that the most dominant factor is international capacity since it is only through the collective will and recognition of the international community that a claiming entity will be recognized and legitimated as a state.
In this environment, it is easy to assume that, once the coveted status of statehood is granted, essential protections such as respect for state boundaries and the non-intervention in the affairs of a state would be accorded to the new state. However, based on the events of recent weeks and months in South Sudan, this assumption appears to be painfully wrong.
South Sudan is the world’s newest state, with an official date of independence from Sudan on July 9, 2011. Achievement of independence from Sudan came at the cost of millions of lives during a series of civil wars and after the people of South Sudan voted for independence in 2011 by a nearly unanimous margin. Several days after this declaration of independence, the world community recognized the statehood of South Sudan by granting it admission to the United Nations on July 14, 2011.
Since that time, South Sudan (Prior IntLawGrrls posts on this issue here) and Sudan have continued to skirmish across their respective borders, with Sudan being reluctant to lose the oil-rich territory within South Sudan and South Sudan asserting its power by pursuing the interests of the Sudanese government along the border. Indeed, over the past few days it appears that this fighting has worsened. In the process, civilians have lost their lives and livelihoods and the stability of both regimes has been tested.

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.

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.

Ex-head of state in the ICC dock

The International Criminal Court's situation in Côte d'Ivoire jumped to the forefront with this news, posted this morning on the ICC website:

Laurent Koudou Gbagbo, national of Côte d’Ivoire, 66 years, arrived today at the International Criminal Court (ICC) detention centre in the Netherlands. He was surrendered to the ICC on 29 November 2011 by the national authorities of Côte d´Ivoire following a warrant of arrest issued under seal by the judges of the Pre-Trial Chamber III on 23 November 2011. The suspect’s initial appearance hearing before the Pre-Trial Chamber III, composed of Judges Silvia Fernández de Gurmendi (presiding judge), Elizabeth Odio Benito and Adrian Fulford, will be held promptly.

Gbagbo (above right), Côte d'Ivoire's head of state in the last decade, had refused to cede after losing a bid to be re-elected President in autumn 2010. (credit for 2008 photo) Violence ensued, as we've posted. The winner of the election, Alassane Ouattara, finally took office this past April.
As for Gbagbo, he now stands charged, pursuant to Articles 7 and 25 of the Rome Statute of the ICC, as an indirect co-perpetrator of 4 counts of crimes against humanity against the civilian population in Abidjan, Côte d’Ivoire's largest city, and elsewhere.
Gbagbo will be the 1st former head of state or government actually to appear before a chamber of the ICC -- though not, of course, the 1st, or 2d, be charged; those titles go to Sudan's President Omar al-Bashir, still at large, and Libya's Muammar Gaddafi, killed in Libya nearly 6 weeks ago.

Recent Remarks by Michael Posner

I had occasion to hear Michael Posner (left)—the Assistant Secretary of State for Democracy, Human Rights & Labor—speak this week. He was in the Bay Area for a conference with business leaders on the internet and human rights. The Center on Democracy, Development & The Rule of Law at Stanford University (my sabbatical home a couple of years back) was a co-host, along with Stanford-in-Government. CDDRL tweeted Posner's talk.
Posner gave a short talk on the Obama Administration’s approach to human rights and then took questions for about an hour. In his prepared remarks, he emphasized that the goal is always to ensure that human rights are raised at the highest level, even with countries with whom our relationship is fraught. He discussed the way in which the U.S. has engaged with civil society in preparing our Universal Periodic Review for the Human Rights Council, which he described as a still “flawed” body. He also discussed the priority of promoting internet freedom to create a common global platform for innovation, education, and political dissent and ensuring that activists understand the risks of using the internet in terms of threats to privacy.
During the Q & A, he offered these frank responses to questions from the audience:
1. In response to a question about the propriety of adopting a rights-based approach to international development, he stressed that all human rights are indivisible, but that we need to approach them in different ways. He stressed the importance maintaining accountability for international aid, ensuring that recipients have a stake in development programs, and prioritizing democracy-building institutions and not just infrastructure projects. He emphasized the need to focus on the NGO sector, where we get “more bang for our buck,” and to develop and apply better metrics to determine if our efforts are effective. In particular, he emphasized the United States’ support for Lifeline, the fund for embattled NGOs.
2. In response to my question about the United States’ position on the amenability of corporations to suit under the Alien Tort Statute (i.e., Kiobel), Posner (not surprisingly) declined to reveal the position the government would take in its brief, which is due in January. He stressed, however, that the U.S. government is not monolithic and that the process of gathering inter-agency views is underway and that “lively discussions” are occurring to map out the Administration’s position.
3. When asked about the treaty ratification process, he was pessimistic about the ability to get outstanding treaties ratified given the state of our Senate and its Foreign Relations Committee. Even the Convention on the Rights of Persons with Disabilities, which he described as being based on the Americans with Disabilities Act, is a non-starter at the moment. He noted that the problem stems from the lack of a domestic constituency for such initiatives, coupled with hostility from Tea Partiers and others to international engagement.
4. When asked about the role of government in encouraging pro-human rights policies within multinational corporations, he stressed three initiatives.

• The first is the Voluntary Principles on Security and Human Rights, which aims to assist the extractive industries in balancing human rights and the need for security in their operations. He described recent plenary meeting in Ottawa in September 2011 that resulted in a decision to build a governing structure based in the Netherlands (a mere 10 years after the launch of the Principles).
• Second, is the Global Code of Conduct for Private Security Companies, an effort to regulate an industry that tends to fall between the cracks of other legal regimes.
• And third: the Global Network Initiative, which includes Microsoft, Google, and Yahoo! (So far, Facebook and Twitter have declined to join). This code of conduct is dedicated to ensuring both privacy and freedom of expression on the internet in the face of government interference.

5. He described as “agonizing” the situation in Somalia, especially in light of the fact that aid was delayed for lack of a reliable local partner. He analogized Al Shabaab’s control over food aid to that of the Government of Sudan, which in the Kordofan region is using food as a weapon. He also predicted that Syrian President Bashir al-Assad would step down eventually, and described efforts to get the Arab League to weigh in.
6. Posner is en route to Burma. He declined to give details about his agenda there, but stressed the following observations:

• the need to solidify the slim opening of political space for opposition parties, including Nobel Peace laureate Aung San Suu Kyi's National League for Democracy (supporters pictured above right);
• the continued persecution of ethnic communities, and
• the intractable problem of long-term political prisoners.
  

He noted that the U.S. government supports in principle the Bali Democracy Forum, but that ASEAN should not be fooled into thinking Burma is on the road to democracy.

Bashir in China

The Le Monde headline says it all:

La Chine reçoit le président soudanais en grande pompe

That is, China has welcomed Sudanese President Omar al-Bashir "in grand pomp" and circumstance.
A most notable circumstance:
As our blogreaders well know, Bashir's named in an international warrant for arrest, on charges including genocide, issued by the International Criminal Court.
China's not a party to the ICC Statute. But it is, of course, among the 5 permanent members of the Security Council, the U.N. entity that in 2005 referred to the ICC the situation in Darfur, the wartorn western region of Sudan. Yet in spite of the result of that referral, China's giving Bashir "the red carpet treatment."
And what of other P-5 members? Britain's Telegraph reports with respect to another nonparty to the ICC:

'The US State department said it continued to 'oppose invitations, facilitation, support for travel by ICC indictees'. However, the US is thought to have tacitly condoned al-Bashir's visit, calling on China to help broker peace between the North and South.'

(And see here.)
Bashir arrived following his attendance at a conference sponsored by Iran, also an ICC nonparty -- but only after being refused air passage over Turkmenistan, yet a 4th nonparty state.

What Role for the African Human Rights System in the Current Transformation of North Africa?

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

TUNIS - In Tunis last week, human rights defenders from across North Africa gathered to discuss the role that the regional African human rights system can play in the current transformation of North Africa. They were attending a workshop organized by the North African Litigation Initiative, a programme established by the Cairo-based Egyptian Initiative for Personal Rights.
Pictured above at far right, I work as the Legal Advisor for NALI, and it was our pleasure to host participants from Mauritania, Algeria, Tunisia, Libya, Egypt and Sudan.
We were also honored to have Justice Fatsah Ouguergouz (left), the Algerian Justice from the African Court on Human and Peoples’ Rights, join us for the three-day proceedings.
It was particularly exciting to hear from Justice Ouguergouz given the pioneering ruling issued by the African Court on March 25. In issuing this Order for provisional measures against Libya, the Court instructed Libya to

'immediately refrain from any action that would result in loss of life or violation of physical integrity of persons.'

The Court’s judgment is its first binding ruling issued against a State. It is an important intervention by the African human rights system in recent North African events.
Overall, however, the view of the workshop participants is that the response of the African system to developments in North Africa has, to date, been slow and lacking in conviction.
Indeed, the fact that African institutions mandated with protecting and promoting human rights have, on the whole, reacted in a limited manner to events in North Africa led a couple of human rights workers to criticize our decision to hold the Tunis workshop. One human rights lawyer from the United Kingdom wrote to me a couple of weeks ago and said that he felt that the workshop was “mistimed.” The African human rights bodies, he said, could only offer recourses that are “time consuming and typically remote from real effects in actual situations.” At this point, he said, it was necessary both in Tunisia and across North Africa to deal with immediate human rights abuses and the rebuilding of domestic institutions. “So why,” he asked, “was this topic chosen at this time and place?”
This question played through my mind on the first day when I arrived in Tunis and went downtown to have tea with a Tunisian activist. Tanks and barbed wire lined the streets (left and below). But the atmosphere was initially peaceful: a couple of women were even taking photographs of each other with the soldiers and tanks.
Suddenly, however, the mood changed. Police with batons and riot shields began chasing a group of young men and all of us sitting at the street-tables ran inside for cover. My Tunisian friend explained:

'The tensions are rising. There is frustration that reform is not occurring quickly enough. We have so much work to do and so many human rights abuses that must be remedied.'

This experience in downtown Tunis emphasized the continuing volatility in Tunisia – a volatility also evident in Egypt, where I live and work. It highlighted the fact that many immediate, domestic steps must be undertaken to ensure the creation of democratic societies fully removed from the past oppressive regimes.
Yet the fact that much work needs to be completed at the domestic level should not exclude engagement with the regional human rights system. On the contrary, it is especially important at this particular moment to consider how the new governments in Tunisia and Egypt (and also, let us hope, in Libya) can develop strong relationships with the African human rights system so that the new regimes actively promote, protect and fulfill the rights they pledged to uphold when they ratified the African Charter on Human and Peoples’ Rights.
The belief that the African human rights system has the potential to reinforce and strengthen domestic reform certainly influences the work of the EPIR, my organization in Cairo. Over the last few months, EIPR staff members have been working around the clock to document and address the continuing domestic human rights abuses in Egypt (see also here).
However, EIPR has also been looking beyond the domestic judicial realm and has been attempting to engage with the African human rights system. In partnership with Human Rights Watch and INTERIGHTS, we requested the African Commission to issue provisional measures to stop human rights abuses in both Egypt and Libya. In the case of Libya, such requests undoubtedly helped to motivate the African Commission to refer the situation to the African Court.
It is critical that North African human rights defenders take this type of proactive approach so that the African human rights system is encouraged to play a positive role in the transformation of North African societies. In his introductory remarks to our Tunis workshop, Justice Ouguergouz reminded us:

'The African Court cannot act, but can only react. Civil society therefore has a crucial role to play in creating an environment where it is possible for both the African Court and Commission to take steps to protect human rights.'

Following these remarks by Justice Ouguergouz, one Tunisian lawyer took me aside and showed me some of the scars that riddle his body following 8 years of imprisonment under the Ben Ali regime. The lawyer told me:

'I will fight for justice for these scars, and for the scars of thousands of other Tunisians. After this workshop I know that I needn’t stop at the domestic level. I will continue the fight for justice within the African system so my country can become a place of tolerance and dignity.'

It remains to be seen how exactly the African human rights system can play a role in the incredible societal transformations occurring across North Africa. One thing, however, is clear: North African human rights defenders are determined to seize this historical moment to ensure that human rights principles are respected. It is NALI’s mission to ensure they are given assistance to utilize every means available to achieve this goal, including recourse to the African regional system.

Bensouda on ICC prosecutions

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post)

At last week’s annual meeting of the American Society of International Law, participants were treated to a luncheon presentation by Fatou Bensouda (right), Deputy Prosecutor of the International Criminal Court and candidate for the top job when Luis Moreno Ocampo’s term expires next year. Bensouda presented some opening remarks and then was ably questioned by our own Diane Marie Amann, as well as a few audience members.
In her luncheon dialogue, which is available for web viewing here, Bensouda began by providing an overview of the work of the International Criminal Court Office of the Prosecutor (OTP) in the most active situations before the Court. Illustrating her talk was the map at bottom, which depicts the 114 states parties to the Rome Statute in dark blue, signatory states in light blue, selected situations in yellow, and preliminary examinations in green.
With regard to Libya, Bensouda stated that the OTP has notified those with formal and de facto authority, including Gaddafi, that their crimes will be investigated. The OTP has made clear that warning civilians to leave before attacking civilian areas does not relieve those involved of criminal responsibility. Bensouda emphasized that the OTP is seeking to be as transparent as possible in its dealings with the Libyan leadership.
In discussing the various situations, Bensouda revealed her vision of the ICC’s role in the global legal order: to prevent crimes through deterrence and by “sending messages” about the types of offenses the international community will not tolerate.
In discussing the OTP’s work with regard to the post-election violence in Kenya, for example, Bensouda asserted that the prosecutions will prevent crimes by “sending the message” that those who gain power by violence will be held accountable.
Similarly, she stated that the prosecution of those who killed peacekeepers in Sudan “sends an important message that the Court supports peacekeeping;” and the trial of Thomas Lubanga for recruiting child soldiers in the Democratic Republic of Congo “signals” the seriousness of that crime.
Bensouda also mentioned a situation in which the OTP is seeking to prevent crimes through incapacitation of key actors. She asserted that the arrest last fall of Callixte Mbarushimana, leader of the rebel group the Democratic Forces for the Liberation of Rwanda, was an effort to “destabilize” that organization and thus prevent crimes in Eastern Congo.
Bensouda also described the OTP’s approach to deciding which situations of alleged international crimes the ICC should investigate. The process of determining whether to pursue a formal investigation has become known as the “preliminary examination.”
Last October, the OTP issued a Draft Policy Paper on Preliminary Examinations. Bensouda promised that the final policy statement would be issued soon. Under Article 53 of the ICC Statute, the preliminary examination phase requires the OTP to determine whether a “reasonable basis” exists to proceed in a situation. This “reasonable basis” analysis has three components. It requires the OTP to assess whether:
► (1) crimes within the ICC’s jurisdiction appear to have been committed;
► (2) potential cases within the situation would be admissible (that is, they are sufficiently grave and meet the complementarity requirement that no State with jurisdiction is already acting in good faith); and
► (3) prosecution would not contravene the “interests of justice.”
The most interesting thing about the OTP’s draft policy on preliminary examinations is that it purports to disavow any role for prosecutorial discretion in deciding which situations to investigate. Whereas an earlier draft policy paper talked about the OTP “selecting” situations to investigate, the 2010 paper takes the position that the OTP must investigate if the statutory criteria are met.
Bensouda’s comments confirmed this approach. She noted that when the office began operations, Colombia and the Democratic Republic of Congo were the “gravest” situations within the Court’s jurisdiction; however, no investigation was opened in Colombia because that country was pursuing some national prosecutions. She also reiterated the OTP’s position that no investigation was undertaken with regard to the war crimes committed by British soldiers in Iraq because they were not sufficiently grave to be admissible.
As I have written elsewhere, this assessment seems mistaken – surely war crimes resulting in the deaths of even a small number of civilians are admissible before the ICC. The decision not to investigate the Iraq situation makes more sense if articulated as an exercise of the prosecutor’s discretion to focus on the most serious situations available. The OTP’s current policy, however, seems to preclude such an approach. Moreover, when questioned about the Court’s selection criteria, Bensouda seemed to admit that gravity is sometimes primarily a matter of numbers of victims – as in the Iraq situation – and at other times is conceived as relating more to the nature and impact of the crimes – in particular, what “signal” a particular prosecution is going to send.
Finally, Bensouda stated that there is no timeline for concluding preliminary examinations, and opined that the act of engaging in a preliminary examination itself has a deterrent impact. Echoing her current boss, Bensouda also emphasized that the OTP “has a legal mandate with no flexibility to adjust to political considerations,” a position that has been challenged recently by writers such as Bill Schabas and James Goldston.
Bensouda concluded that the ICC represents a “paradigm shift” from the Westphalian model of state sovereignty to one of international scrutiny and the rule of law.
In the questioning, Bensouda was pressed hardest on the problems associated with the ICC’s exclusive prosecution of African cases. She noted that such criticisms often overlook the victims of the African conflicts, and stated that she would “not apologize” for seeking to give victims a voice. She also sought to justify the emphasis on African situations by reference to the requirements of the ICC Statute, in particular the principle of complementarity. She noted that the OTP always encourages national proceedings but that unfortunately those are “not happening in Africa.” She reminded the audience that three of the African situations were referred by the affected governments themselves.
Nonetheless, when asked whether the ICC’s focus on Africa mitigates in favor of an African as the next prosecutor Bensouda, a native of the Gambia, was (unsurprisingly) supportive!

ICC referral: sweet, or bittersweet?

Some sweet irony in the referral of the Gadhafi regime to the International Criminal Court.
As watchers of the Hague-based court at left well know, longtime Libyan leader Moammar Gadhafi long has been a thorn in the ICC's side.
It's not just that Libya's not a party to the Rome Statute of the ICC. As the map below shows, the same holds true of many of its Arab neighbors -- and of certain very large states to the west and east of Libya.
Rather, Libya's particularly prickly relation to the ICC stems from Gadhafi's efforts to exerts his brand of leadership on the African continent.
To cite an example: It's no accident that, as Pittsburgh Law Professor Charles Jalloh, among others, has noted, the 1st African Union resolution condemning the ICC's pursuit of Sudanese President Omar al-Bashir occurred at a meeting in Libya.
Libya also is a member of the Human Rights Council, formed in 2006 as a means better to promote human rights within U.N. member states and throughout the world.
The Human Rights Council broke with Libya on Friday, as we posted here and here. Reports that the Gadhafi regime had ordered aerial attacks and street-thuggery against its own, unarmed civilians compelled the Council unanimously to urge the General Assembly to suspend Libya's U.N. membership.
Last night the Security Council went giant steps further, not only imposing sanctions and an arms embargo, but also referring the Libya matter to the ICC. The vote was unanimous among the T-10 and P-5 alike: ICC nonparty China put aside earlier-reported misgivings, and the United States, another ICC nonparty, openly supported an ICC referral for the 1st time ever.
Here're the pivotal paragraphs of Security Council Resolution 1970 (February 26, 2011):

The Security Council,
....
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,
....
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 and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;
7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily; ...

The resolution zeroes in on Gadhafi -- and what little seems left of his regime in the wake of many ministerial defections to the antigovernment side.
Worth noting: The caveat concerning a national of a nonparty state present at the scene by authorization of the Council -- presumably, a person deployed as a U.N. peacekeeer. Evidence that such a person took part in criminal behavior must be referred to the state of nationality; by the terms of ¶6, absent a waiver the ICC would have no jurisdiction over such a malefactor. (Thanks to our colleague Kevin Jon Heller (his OJ post here) for pointing out my initial, erroneous interpretation.)
Some cause for concern: The foisting of the costs of ICC investigation onto the ICC and states that choose to contribute. That provision in ¶8 hints at certain lingering reluctances, and serves to remind of the deaf ear that the Security Council has turned to the ICC Prosecutor's pleas for aid in effecting the arrest of international fugitive and still-incumbent President Bashir.
It's to be hoped the Security Council's newfound spine will translate into helping the ICC as it endeavors to respond responsibly to yet another weighty referral. It's also to be hoped that the ICC will rise to the "test," to quote our colleague William Schabas; that is, it "must inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis."
If not, today's irony may prove more bitter than sweet.

(Credit for 2010 map indicating: in grey, states, like Libya and China, that have neither signed nor ratified the ICC Statute; in orange, states, like the United States, Sudan, and Russia, that at one time signed but never ratified; and in green, full states parties to the ICC Statute. Though slightly out of date -- it shows 111 rather than the current 114 states parties -- the map is accurate with regard to the states discussed in this post, a version of which is cross-posted at The Huffington Post.)

North African women's power?

'How many women are there?'

The question, heard on my commuter train yesterday, spoke volumes.
The question referred to this week's anti-government protests in Egypt. But it applied to all the ferment throughout North Africa and the Middle East this young but remarkable new year.
Mass demonstrations in Egypt, which yesterday prompted 30-plus-year-President Hosni Mubarak to attempt an LBJ.
Mass demonstrations as well, as IntLawGrrl Karima Bennoune has posted, in Algeria and Tunisia. Still more in Yemen and Sudan. Plans are on for Syria this weekend.
Then too there was yesterday's trying-to-get-in-front-of-events dismissal of the Cabinet of Jordan, another site of demonstrations, by its king.
The gender dynamics in countries like these are fraught. For that reason, a marker of the true democratic potential of these events is inherent in the commuter's question quoted above. Rephrased, it is:

Are women taking part, and if so, to what extent?

As to the 1st part of the question, it seems the answer is "yes."
Although most photos shows seas of men, within can be found islands of women. Women, young and old, with and without head coverings. (In addition to photos accompanying this post, see, e.g., here and here.) Other women reporting on the scene, via all the channels of social networking about which Hope Lewis posted earlier this week. (Some are local women. Some -- like Sonia Verma, tweeting for Toronto's Globe and Mail (far right), and Harriet Sherwood, tweeting for London's Guardian (near right) -- are not.)
As to the 2d part of the question?

How extensive is women's participation, now and for the long term?

The answer awaits further events. In the meantime, IntLawGrrls welcome readers' realtime comments and reports.

(Clockwise from top left: Suhaib Salem/Reuters photo of women at demonstration in Egypt appeared in a photo array yesterday at The New York Times' site; credit for Reuters/Muhammad Hamed photo of Jan. 28 demonstration in Amman, Jordan; credit for Jan. 30 BBC image of Sudan protest; credit for Jan. 15 cover photo from the Paris daily Libération, depicting a protest in Tunisia; credit for Hani Mohammed/AP photo of students chanting at Jan. 29 Yemen protest)

Look On, Read On: Can watching & reading stop a renewal of Sudan's other war?

Yesterday marked the launch of the Satellite Sentinel Project, which aims to use technology to provide early warnings and raise public awareness about violence in Africa's largest country (map credit), and so to try "to deter the resumption of war between North and South Sudan."
Satellite Sentinel's a partnership of Hollywood celebrities (George Clooney et al.), corporate America (Google et al.), nongovernmental organizations (the Enough Project and the Harvard Humanitarian Initiative), and intergovernmental organizations (agencies of the United Nations). It promises to provide corroborated information

in near real-time (within 24-36 hours), with the aim of heading off humanitarian disaster and human rights crimes before they occur.

A core objective -- to use this information to prod the public to pressure public officials -- is apparent in the Project's slogan: "The world is watching because you are watching."

Can it work?

At the least, it may make more difficult a full-scale return to Sudan's other war -- not Darfur, the western Sudan (green on the map) turmoil that continues to simmer even as Sudanese President Omar al-Bashir continues to evade an International Criminal Court warrant, but rather the civil war that ravaged the southerly regions of Sudan for 20 years before the signing of a Comprehensive Peace Agreement in 2005. The agreement granted the south some autonomy and provided for a future referendum on full independence from the government in Khartoum (in the orange region on the map). Voting is just around the corner: January 9, 2011, in Southern Sudan (blue) and Abyei (red). Backers of Satellite Sentinel hope that the Project's eyes in the sky -- commercial satellites -- and voices on the ground will help to avoid violence during or after the election.

(Unstated is another potential use of these data. Should proactive efforts fall short, surveillance footage and contemporaneous reports would create a trove of evidence for prosecution of perpetators. To name a possible forum, the International Criminal Court is keenly interested these days in election-related violence. (And see here.)

Missing from the Project mix?

In contrast with Darfur, the history of North-South troubles is largely unknown. This absence of background knowledge may make it harder to push the public to push their officials. But there is much background information available.

In addition to any number of weighty tomes, here are a few mass market treatments that provide contexts for what is to come:
► Emma's War: An Aid Worker, a Warlord, Radical Islam, and the Politics of Oil--A True Story of Love and Death in Sudan (2002) by Deborah Scroggins, formerly a reporter for the Atlanta Journal-Constitution. The title pretty much says it all: this is the biography of Emma McCune, a Briton whose art history studies led her to Southern Sudan, 1st as an aid worker, then as an independence advocate, and ultimately to marriage with a rebel leader and death, in a Nairobi car crash, at age 30. McCune's trajectory sweeps with it much about the war.

► Acts of Faith (2005) by Philip Caputo, a onetime Chicago Tribune reporter and Pulitzer Prizewinner. Readers of Emma's War will find in this novel a familiar charater -- a lost young woman, American rather than British, who arrives in Sudan as an aid worker and eventually marries a rebel warlord. She's easier to understand than McCune, perhaps because the fictional format allowed the author more free rein. Acts benefits too from other characters and other subplots, all woven around a large and complex story of Western involvement (charitable and otherwise) in the civil war and the warriors' practice of enslaving captives.
► What Is the What (2006) by Dave Eggers. In this book Eggers, the subject of a prior post, writes the autobiography of Valentino Achak Deng, born in the midst of the civil war. Deng's tragic journeys include a short stint as a child soldier and a much longer one as a "Lost Boy," wandering with other unfortunates in a wilderness that leads 1st to a refugee camp in Kenya and ultimately to a new and strange life in the United States. This is the best written of the 3 books, but the reader will better understand it if informed as well by the other 2.

There's No Place Like Home

Though voluntary repatriation is the most appealing of the durable solutions available for refugees, those who return home face many obstacles. The news this week is full of stories of the hardships confronted by returning IDPs and refugees: of the impact of floods in northern Sri Lanka on those who have just returned home, of the difficult readjustment from urban to rural living for southern Sudanese, and of the landmines facing those who fled the Lord's Resistance Army in northern Uganda. Despite these challenging realities, the repatriation process as currently designed assumes that once refugees return home, they're safe and they're there to stay.
Dr. Lucy Hovil (prior IntLawGrrls post), Senior Researcher for the International Refugee Rights Initiative, (pictured below right) published last month a UNHCR Research Paper challenging this disconnect between the policy and reality of repatriation. The article, entitled Hoping for peace, afraid of war: the dilemmas of repatriation and belonging on the borders of Uganda and South Sudan, notes that while the official process of repatriation is a unidirectional single course of action, the realities on the ground are significantly more multi-faceted. Hovil argues that repatriation should be reconceived as restoration of citizenship bonds or empatriation rather than just the crossing of a border.
What exactly does she mean by this? Using the case study of southern Sudanese refugees living in northern Uganda, Hovil notes that while Sudan has reached an officially acceptable level of stability according to UNHCR, individuals and families who return still face threats to their safety and chronic uncertainty. As a result, those who return informally tend to do so in several steps, carefully ensuring the safety of their family. One interviewee described how he returned to Sudan to see his land and build a house, then returned a year later to farm his land, and then a year later brought back his family members. Even at that point he did not consider himself fully repatriated; he was still monitoring the situation and was ready to return to northern Uganda if necessary.
In other words, restoration of the bonds of citizenship is a process that takes time; abrupt return fosters dependence and insecurity. In contrast to those who are allowed to return at their own pace, those repatriated by UNHCR have only the food they come with and have forgone the opportunity for protection from future threats by officially relinquishing their refugee status.
Hovil also notes that the reconstruction of community is a slow and organic process. Returnees generally repatriate out of a desire to restore the roots lost through exile. They are in search of community, which will in turn provide them with a sense of local belonging and also of national legitimacy.
Hovil argues that successful community reconstruction requires freedom of movement within and between states so that former refugees can access social, economic, and cultural resources outside of their state of origin. Without such reconstruction, the profound political change needed to stabilize a shattered state is unlikely.

(credit for photo above left)

Building Barricades to Protection

This week, Israel began building a $372 million, 155-mile barrier, including electric fencing and surveillance technology, along its border with Egypt.
As other routes for African migrants (such as the sea route between Libya and Italy) have been blocked, the numbers of migrants crossing the border from Egypt has increased dramatically. In 2009, Israel reported just over 4,000 undocumented migrants; that number is up to over 10,000 so far this calendar year. While the Israeli government claims that the wall will prevent Islamic militants and human traffickers from reaching Israel, it will also significantly impair the ability of asylum seekers to reach Israel.
One might expect a nation of refugees for whom the UN Refugee Convention was created to have a generous policy towards those seeking protection within its borders. This new barrier, however, presents just one more instance of Israel's failures to live up to its responsibilities under the UN Refugee Convention.
Israel hosted just over 4,000 asylum seekers in 2009, most from Eritrea and Sudan, yet Israeli NGOs report that the country has granted asylum to fewer than 200 applicants since it ratified the UN Refugee Convention in 1954. As described further in this report by the Israeli NGO Refugees' Rights Forum, the asylum process in Israel is dysfunctional, often requiring a wait of over a year for an interview. Rather than legally recognizing refugees from Eritrea and Sudan -- nations to which the UNHCR forbids deportation because of the dangers facing those who return -- Israel instead grants most of them temporary protection, a much less stable status that does not permit them to work and allows the Israeli government to return them when the situation the refugees' home country improves.
Those who are less lucky are detained (currently, over 2000 asylum seekers) or worse. Under Israel's "Hot Return" policy, authorities expel undocumented migrants directly to Egypt without providing access to asylum procedures and without obtaining guarantees against refoulement from the Egyptian government. The U.S. State Department reports that Egyptian authorities detain some of these asylum seekers, holding them in conditions that violate international human rights standards, and refoules thousands of others back to Eritrea and Sudan.
Though Israel must take seriously threats to its national security, this nation of refugees does itself a disservice by building further barricades to protection for those fleeing persecution.

ICC-Kenya-Bashir continued

The International Criminal Court is stepping up pressure on Kenya.
Last month Kenya permitted Sudan's President Omar al-Bashir to attend a Constitution Day celebration in Nairobi -- notwithstanding that Bashir's been indicted by the ICC, nor that Kenya, as an ICC state party, is obliged to cooperate with the court's efforts to secure personal jurisdiction over Bashir.
The safe passage Kenya allowed Bashir in September drew rebuke from U.S. President Barack Obama, as we then posted.
The ICC had made its own complaints a number of times earlier, among them an August bid before the U.N. Security Council.
This past Monday, the ICC sent a new message, this one directly to Kenya.
In its Decision requesting observations from the Republic of Kenya, ICC Pre-Trial Chamber I asked Kenya for information on

any problem which would impede or prevent the arrest and surrender of Omar Al Bashir in the event that he visits the country on 30 October, 2010.

Meanwhile, nearly 2 dozen nongovernmental organizations, representing Africa's civil society, also sent a letter urging Kenya to arrest Bashir.

Kenya's supposed to give its response to the ICC no later than this Friday, the day before the possible visit of the fugitive head of state, in connection with a summit session of IGAD (logo at left), the Djibouti-based Inter-Governmental Authority for Development. That group's expressed "dismay" regarding ICC charges against Bashir.

All this unfolds against the backdrop of Kenya's own problems with the ICC, which is investigating post-election violence in that country. Governmental resistance to inquiry (including that by the truth commission) is stiffening.

Stay tuned.