Mark Kersten

Missing the Mark: The ICC on its Relationship with the UN Security Council

ICC Prosecutor Luis Moreno-Ocampo briefing the UN Security Council on the situation in Sudan. Photo: Coalition for the ICC/flickr

Last month, for the first time since the International Criminal Court (ICC) was established, the United Nations Security Council debated its relationship with the Court. After two Security Council referrals (Darfur 2005 and Libya 2011), it was high time that the relationship was critically analyzed. Unfortunately, key issues which have undermined the independence and legitimacy of the ICC were left largely unaddressed.

There are many problematic issues with regards to the relationship between the ICC and the UN Security Council. Broadly, most fall under three categories: the potential tensions and dilemmas between peace-making/conflict resolution and international criminal justice; the inevitable selectivity that only some situations of mass atrocity will be referred by the Council to the ICC while other cases, which are just as deserving, will not; and the political constraints imposed by the Security Council on the ICC when it decides to refer a case to the Court.

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A Little Less Isolated and a Lot More Troubling: Ban Ki-moon Meets Bashir

Omar Hassan Ahmad al-Bashir in Ethiopia, 2009. Photo: Wikimedia Commons

Attempts to isolate and marginalize Sudanese President Omar al-Bashir have been mixed at best. The man many people believe is ultimately responsible for the violence and misery of Darfur – and who has been indicted by the International Criminal Court (ICC) for it – has worked tirelessly to show that, as a head of state, he can still galavant across the globe to international conferences and state meetings.

Of course, Bashir hasn’t always been able to go wherever he wants. He hasn’t visited a ‘Western’ state since he was indicted by the ICC in 2008. While he has visited ICC member-states, notably Chad and Kenya in 2010, he is still severely constrained in his movements and Malawi, a member-state which originally let him visit in 2011, has since declared that he is unable to do so again.

As many readers will know, the marginalization of perpetrators of atrocities is a central argument for proponents of international criminal justice. In brief, the argument suggests that investigations and the issuance of arrest warrants against international criminals will isolate them, both within their networks of power such as a government or a rebel group as well as within the international context. In the long-run, it is hoped that this marginalization can ultimately fill the docks of international criminal tribunals and deter the commission of crimes.

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Saif Wants to be Tried at the ICC – But That’s Not All

Benghazi caricatures of Gadafi
Benghazi caricatures of Gadafi. Photo: Wikimedia Commons

Late last week, the Office of Public Counsel for the Defence (OPCD), which has been representing Saif al-Islam Gaddafi at the ICC, filed its official response to Libya’s admissibility challenge at the ICC. The impressive report, a whopping 92-pages long, should be read in its entirety. It includes an in-depth account of the arrest and detention of Melinda Taylor and the ICC4. Kevin Jon Heller at Opinio Juris has covered the most controversial and pertinent bits of the report (see here and here) and has posted a must-read piece on the relevance of the failure to provide Saif with due process in Libya’s admissibility challenge. Here are a few things that I found particularly interesting and important.

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LRA Commander, Caesar Achellam, “Captured” – Some (Mostly Skeptical) Thoughts

Ugandan army in Soroti, Uganda, April 2011
In what has generally been reported as a “major coup” for African Union forces – and by extension the KONY2012 faithful – a senior LRA commander, Caesar Achellam was detained over the weekend while crossing the border between the Democratic Republic of Congo and the Central African Republic.

While the Ugandan army (the UPDF) were quick to exclaim that they had captured a “big fish” and many reported that Achellam’s arrest marked a huge victory in the hunt for Kony, there are good reasons to be skeptical of these claims.

Who is Caesar Achellam?

Achellam is a senior commander in the LRA. He was, at least as of 2008, a Major General. It was reported that he was close to Vincent Otti, the LRA’s second in command who was executed in 2008, on orders from Kony, for having been too deeply involved in efforts to resolve the ongoing conflict. Many of those who were close to Otti feared for their lives and Achellam apparently sought to surrender himself. While it is unclear how, he clearly regained the trust of Kony, rising to a prominent position in the LRA. Some say that, at the time of his “capture”, he was the fourth most senior commander in the LRA, perhaps even the LRA’s most senior strategist. Despite his seniority, however, Achellam is not amongst those LRA combatants indicted by the ICC.

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Drones for the ICC and Drones for Human Rights?

US Air Force General Atomics MQ-1 Predator Unmaned Aerial Vehicle. Photo: James Gordon/flickr

A recent thought-provoking and provocative op-ed in the New York Times has presented a serious challenge to those who view drones as nothing more than the evil extensions of secretive warfare. According to Andrew Stobo Sniderman and Mark Hanis, “[i]t’s time we used the revolution in military affairs to serve human rights advocacy.”

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