International Criminal Court

War crimes conviction a significant victory for international court, says U of T expert

lavende4 — Tue, 23 Aug 2016 19:07:27 +0000

War crimes conviction a significant victory for international court, says U of T expert

lavende4 Tue, 08/23/2016 - 15:07

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UN peacekeepers stand next to a restored mausoleum that had been destroyed in Timbuktu in 2012 (SEBASTIEN RIEUSSEC/AFP/Getty Images)

Krisha Ravikantharaja

Author legacy

Krisha Ravikantharaja

Topic

Global Lens

Munk School of Global Affairs & Public Policy

International Criminal Court

Timbuktu

Earlier this week, Ahmad al-Faqi al-Mahdi pleaded guilty at the International Criminal Court to ordering the destruction of 10 cultural sites in Timbuktu, Mali in 2012. U of T News spoke with Munk School of Global Affairs research fellow Mark Kersten (below) about what makes al-Mahdi’s trial significant, and what it could mean for international justice. Kersten (@MarkKersten on Twitter) has been studying the ICC for several years and frequently writes about the court on his blog at https://justiceinconflict.org/.

What specifically about this case is unprecedented?

While the destruction of cultural sites has been prosecuted before, the al-Mahdi trial marks a number of ‘firsts’ for international justice and the International Criminal Court in particular. It’s the first time that anyone has been prosecuted for destroying cultural sites as a war crime. Al-Mahdi, who has accepted responsibility for demolishing shrines and mausoleums in Timbuktu, is also the first-ever Islamic radical and the first citizen of Mali to be put on trial at an international criminal tribunal. For the ICC, it is the first time that anyone charged by the Court has pleaded guilty.

Why has the ICC chosen to proceed with al-Mahdi’s trial proceed despite his guilty plea?

Neither al-Madi’s defence nor the prosecution can avoid the official procedures of the court — nor should they. There may be questions that judges would like clarified by al-Mahdi’s defence team, the prosecution, and the accused himself. This is in the international public’s interest. If there were no trial hearings, al-Mahdi would not have been able to so publicly announce his regret for the crimes he committed nor implore other Muslims to avoid following his destructive path. Moreover, the prosecution and defence team struck a plea agreement which stipulates that if ICC judges give al-Mahdi a sentence of somewhere between 9 and 11 years, no party to the proceedings will appeal. The court’s judges are not bound by that agreement, even if they have an interest in following it in line with their commitment to efficient proceedings. Judges will want to probe other aspects of the trial and the plea agreement. And victims and survivors in Mali have the right to see al-Mahdi face questions over his motivations, his remorse, and the likelihood of him re-committing crimes in the future. Nevertheless, the trial should move very swiftly and will undoubtedly be the shortest trial at the ICC to date.

What is the significance of the ICC prosecuting war crimes that target the destruction of culturally important sites?

There has been widespread international condemnation of the destruction of cultural sites. Yet, before this week, there was very little legal recourse to prosecute those who perpetrate such cultural crimes. The acts of wanton vandalism and destruction by ISIS fighters in Palmyra and the obliteration of Bimayan Buddhas by the Taliban stand out as just two recent examples that have spurred international outrage at the loss of cultural antiquities. The ICC wanted to tap into that unified sense of anger and has sought to present itself as a relevant actor in holding perpetrators of cultural crimes to account. Because of its limited jurisdiction, it couldn’t achieve either of those aims in Syria or Afghanistan. But it could in Mali. Together with UNESCO, I think the ICC is positioning itself as the frontline of protecting cultural sites in time of war and violent political conflict. Whether they can successfully do so remains to be seen, but al-Mahdi’s trial is undoubtedly a momentous event in that mission.

Will this case have implications for legal charges against those that have destroyed cultural sites elsewhere like Syria and Iraq?

It could. Every time there is a trial on a specific charge, precedents are established and clarified. Still, I don’t think that ISIS fighters in Syria and Iraq will all of a sudden drop their grenades and crowbars because al-Mahdi was caught and prosecuted at the ICC. That’s just not how deterrence works — even if some people wish it would. We need to avoid raising the expectations of what international justice, from the ICC or any institution, can achieve. Nevertheless, when accountability for the panoply of atrocities in Syria and Iraq finally becomes possible, I think we are more likely to see energy and focus paid to cultural crimes because of the attention that al-Mahdi’s trial is receiving now.

Do you think this case will have an effect on the reputation of the ICC and its efficacy? Is this a step in the right direction?

For numerous reasons, this is a big win for the ICC. Al-Mahdi’s will be a short and efficient trial, which is important for a court that has been hobbled by inexcusably long proceedings. Given its woefully low budget, concluding a trial without expending too many resources is also important. Al-Mahdi’s surrender to the ICC was accomplished with the cooperation of both Niger and Mali, a fact that helps the Court counter the accusations that it is biased against Africa and that African states are ‘against’ the institution. Even before he was surrendered to the ICC, al-Mahdi was apparently cooperating with ICC investigators and prosecutors. That means he could help in bringing other perpetrators in Mali to account. This is why the criticism of skeptics who say the ICC should be focusing on the destruction of human lives and not bricks-and-mortar is short-sighted. If al-Mahdi provides solid testimony and evidence of other crimes, he could emerge as an extremely useful resource not only for the ICC but for accountability in Mali more generally. Finally, I think the ICC tapping into the sense of outrage at the destruction of cultural heritage sites serves the court’s interest of being a relevant institution and being seen as an institution that prosecutes crimes that ‘shock’ the conscience of humanity. In short, while the implications and impact of the al-Mahdi trial remain to be seen, I think this is a significant victory for a young, and still fledgling, court.

Munk School war crime researcher wants to give something in return

lavende4 — Mon, 16 May 2016 15:38:50 +0000

Munk School war crime researcher wants to give something in return

lavende4 Mon, 05/16/2016 - 11:38

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Southern Sudanese children displaced following attacks by the Lord's Resistance Army. Munk Research Fellow Mark Kersten has done extensive research on the rebel group and its atrocities (AFP/Getty)

Terry Lavender

Author legacy

Terry Lavender

Topic

Global Lens

International

Munk School of Global Affairs & Public Policy

International Criminal Court

Subheadline

Mark Kersten hopes “drop in the ocean” gesture will spur discussion

“Are you afraid we’re going to kill you?”

That was the blunt question that a group of former commanders in the notorious rebel group, the Lord’s Resistance Army (LRA), asked Mark Kersten when he went to Uganda in 2011 for research on the effects of the International Criminal Court’s intervention in the north of the country.

“I remember telling them that I wasn’t worried because they wouldn’t be forgiven for killing a Western researcher,” he told U of T News recently. “It’s sad, but it’s true that despite receiving amnesty from the Ugandan government for atrocities against their own people, they would be punished severely if they killed a researcher from the West. They laughed and said, ‘Yes, that’s true.’”

That was only the beginning of an hours-long conversation with the former commanders, who had been forced to join the LRA as child soldiers. Since they had been amnestied, the ex-soldiers had attracted the attention of other Western researchers, and they were frustrated that previous researchers had interviewed them and then left, never giving anything back in return to the people they interviewed.

That encounter led Kersten, now a research fellow at U of T's Munk School of Global Affairs, to decide to give 200 copies of his upcoming book, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, to libraries, schools and universities across Africa and ICC-affected countries. The publishers, Oxford University Press, will provide the books, and all of Kersten’s royalties will pay for the shipping and handling costs.

Kersten says he believes that more and more researchers are beginning to realize that they need to give something in return to the places where they conduct research. “My gesture is just a drop in the ocean, but hopefully it will spur some discussion and get others thinking about how to make our work more accessible.”

The book uses case studies from northern Uganda and Libya to analyse the effects of the ICC, which, Kersten says, is suffering from a problem of unrealistic expectations. “When it was originally set up, a lot of people thought the International Criminal Court would change the world – that it would prevent mass atrocities and bring those responsible for atrocities to justice.”

Although it hasn’t fulfilled those expectations, Kersten says the ICC has changed the way that people think about justice and accountability around the world. “The very existence of the court has shifted thinking from whether justice can be done to how and when justice can be done.”

Kersten says his interest in the ICC began when Sudanese president Omar al-Bashir was indicted by the ICC in 2008 for war crimes in Darfur (read Kersten's comments to the Washington Post about Bashir). At the time, he said, there was debate over whether the indictment would help or hinder the prospects for peace in Darfur.

“On the one hand, you had scholars and journalists saying that prosecuting a sitting head of state who was actively involved in a war could undermine any attempt to resolve that conflict peacefully. On the other hand, you had people arguing that you shouldn’t sacrifice justice at the altar of some potential future peace.”

That interest led Kersten to start the Justice in Conflict blog which now has hundreds of entries and receives more than 15,000 visitors each month. And, after teaching at the London School of Economics and SOAS, University of London, Mark’s work has led him back to his native Canada, and to a two-year SSHRC-funded research fellowship at Munk.

“Munk is a terrific place to be based,” he says. “It’s a perfect place to consider issues on international justice, measuring the impacts of criminal justice processes around the world and re-imagining Canada’s role on global justice issues. I’d like to stay longer than just the two years.”

Kersten also hopes to help Canada rehabilitate its global reputation. “It’s clear to me that Canada’s reputation – as it pertains to human rights, atrocity prevention and so on – has suffered a lot over the past 10 years. I wanted to come back and engage with like-minded Canadians on how to resuscitate that reputation and impact.” One way, he suggests, is for Canada to appoint an international justice ambassador. “I think we can envision Canada in a position at the forefront of human rights and global justice. Developing new policies and appointing an international justice ambassador would go a long way in telling the world that Canada really is back.”