Canadian lawyer and diplomat Philippe Kirsch was the first president of the International Criminal Court (ICC) and served as a judge on the court from 2003 to 2009. Prior to that, he worked for Foreign Affairs for 30 years. He served as assistant deputy minister for legal, consular and passport affairs, as deputy permanent rep- resentative to the UN, as legal adviser for the department and, finally, as ambassador to Sweden.
He retired from that position to become a judge at the ICC, not a surprising appoint- ment since he chaired the committee that established the court in the first place. In2009, he received the Order of Canada for his contributions to international criminal law. Diplomat last interviewed him when he was still at the court, so editor Jennifer Campbell thought it was time to get caught up on what he’s been doing since he left that position nearly three years ago. She spoke with him by phone from his home in Sallèles d’Aude, France.
Diplomat magazine: The last time we spoke, you were heading up the Inter- national Criminal Court at the Hague. What have you been doing since you left that job?
Philippe Kirsch: I left in March 2009 . Three days later, I was appointed judge ad-hoc at the International Court of Justice in a case concerning [war crime suspect] Hissène Habré — it’s a dispute between Belgium and Senegal as to whether and where he should be tried or prosecuted . I still have that job because the case is not finished . [Habré was the leader of Chad from 1982 until he was deposed in 1990 . Human rights groups allege he is respon- sible for thousands of deaths .]
I spent a couple of years doing a lot of conferences, which I decided to reduce in 2010 because it was just too time-con- suming . I must have done 40 or 50, some of them in Canada, including the last one at the Trudeau Foundation in December, 2010, in Winnipeg . My main two activities this year have been the Bahrain Commis- sion of Inquiry and the Libyan Commission.
Dm: But in theory, you’re retired, correct?
PK: I heard rumours to that effect (laughs) but I think I was very wrong on what re- tirement is supposed to be . I had [it only for] the first three days.
Dm: What have you been doing with the Libyan Commission?
PK: The situation has changed a lot [as a result of the National Transitional Coun- cil coming to power and the death of Gadhafi] . The first part of the mission of the commission was obviously to focus on abuses committed by the Gadhafi re- gime during the repression of demonstra- tions in February .
The situation changed in the sense that it moved from a situation of disturbances, in a [nation] which was still formally at peace, to non-international conflict, where you had a government fighting a force that was organized . Then you had a parallel international conflict involving a coalition of states and NATO, but this was a separate conflict .
The international allies had no control over what was happening on the ground or over the two parties to the non-international conflict . The com- mission then had to investigate allegations of violations of international humanitarian law, not only of human rights law .
That was t he cont ext in which we conducted our first mission . We went to Tobruk and Benghazi to see the National Transitional Council and we went to Tripoli to see the representatives of the Gadhafi regime at the time . We visited prisons and interviewed many people, also in Egypt and Tunisia . Our first mis- sion was still in a situation where you had two poles, the government and the oppo- sition, or rebellion.
What happened in the [autumn of 2011] was that the focus moved almost entirely to the National Transitional Council . Our next report, which is due in March, will still deal a lot with violations of the law during the past armed conflicts, but will probably focus increasingly on the Na- tional Transitional Council and the forces working with it, now being the only game in town . Therefore we will have to look at what happens on that score because the mandate that we have is not limited to the conduct of the Gadhafi regime . The reso- lution asks the Commission to investigate all violations in the territory . So we have to look at everything .
Dm: How long do you expect to be in- volved?
PK: I think the next report [in March 2012, to the UN Human Rights Council] will be the final report . We are planning two missions of the commissioners: one in December [2011] and one in January, both preceded by a long mission by investi- gators who will be with us again when we’re in the territory . An advance mis- sion just came back [in November] from Tripoli to report on the situation .
Dm: At the same time as you’re studying the Libyan situation, you’re also one of five members of the Bahrain Independent Commission of Inquiry .
PK: Yes . The commission looked into events when there were demonstrations events when there were demonstrations which were repressed by the government with excessive force and where other al- legations of abuse have been made, for example, with respect to detention and treatment of detainees, arrests, investigations and trials that may not have been conducted properly . As a result of such allegations, the King of Bahrain ap- pointed this independent commission of inquiry with five foreign commissioners .
Dm: Do you take it as a good sign that the King appointed an independent commission?
PK: It’s a hopeful sign . It is obviously more healthy if a neutral commission is appointed at the national level by the authority of that country than if it is im- posed by the international community . It’s better for society . The commission is absolutely impartial . I know all the commissioners . They are people who aren’t going to be influenced by one side or the other . We’re going to say what we think, whoever has or has not done what .
Dm: Did the King choose the commissioners?
PK:He chose the head of the commission, Professor Cherif Bassiouni, an Egyptian- American who teaches at DePaul Uni- versity in Chicago and who was also the chair of the Libyan commission before I took over . I’m not sure what the process of selection was of the other commissioners .
[Note: The commission released a 500- page report after this interview in No- vember . It took 9,000 testimonies, offered a chronology of events and documented 46 deaths and 559 allegations of torture . There were also some 4,000 cases where employees were dismissed for protesting . The report was critical of security forces which it said used “force and firearms” in an “excessive manner that was, on many occasions, unnecessary, disproportionate and indiscriminate .”]
Dm: On the topic of the International Criminal Court, can you talk about your aspirations for the court and what you think will become of it?
PK: The perception I have from a distance is that the ICC is much more solid than it was two or three years ago . First of all, there was the reference of the Libyan situ- ation, which was the second referral by the [UN] Security Council [after the situ- ation in Darfur] . It now has seven situations . But the point is that, in addition to what it actually does, it seems to be perceived today as a much more natural piece of the international landscape than it used to be . I don’t detect the same kind of attacks, or at least the great suspicion, that existed a few years ago . I also note so many references to the ICC across the world . As soon as a situation develops, where crimes seem to have been committed, the first reaction is often that the ICC should deal with it . There’s that, and the fact that the number of states [parties to the Rome Statute which governs the ICC] has risen to 119, which is quite a few more than when I left . Overall, I think the court situation has been improving .
That doesn’t mean it doesn’t have major hurdles to go through still . For exam- ple, it could work more efficiently . It will also continue to work in an international environment that is difficult because, by definition, all situations that are referred to the ICC are linked to some kind of politi- cal situation with big interests — so some- one will always have an interest in making things difficult .
And again, I guess at some point, it will be important for the ICC to move away from its exclusive focus on Africa . I found it understandable that it initially [focussed on Africa] for a variety of reasons, includ- ing the gravity of the crimes committed, and also because a number of African states had accepted its jurisdiction . That is not necessarily the case in other regions in which crimes are committed . If the ICC has no jurisdiction over a particular situa- tion, because the state concerned has not accepted it, there’s no way it can get the case except through the Security Council . So it is limited in the exercise of its man- date . That said, I think it will be necessary to visibly broaden its scope of activities geographically, albeit still within the limits of its mandate .
Dm: To what do you attribute the successes that have made the court more prominent?
PK: For one, I think the institution is bet- ter known and understood than it was . For a long time there were great confu- sions between the ICC, the International Court of Justice, the ICTY [International Criminal Tribunal for the former Yugo- slavia] — all those institutions . I think the ICC now really has acquired a stature of its own . The other thing is the way it has conducted itself, and that’s some- thing I was extremely attentive to when I was president . It has never conducted proceedings on any other basis than the law . When the ICC is accused of bias, the accusation is always based on vague, broad statements, on perceptions . I never saw an attack on
the actual reasoning by a chamber, for example, because they are simply based on very solid legal grounds . And I think that reassured some states that were concerned about having a court [with] a political bent .
Dm: What are your long-term hopes for the ICC?
PK:My major hope for it remains what I’ve had in mind since the Rome Confer- ence [which created the judicial body in 1998] — that the ICC will be able to fulfill its mission, [which will happen] only when you get very close to universal ac- ceptance [by countries of the world] . At the beginning, the number of ratifications increased very fast, then it slowed . It’s picked up again now . It’s making a dent in Asia . The Philippines ratified recently; Malaysia and Indonesia made public statements that they would . Those things are important .Tunisia has now ratified, also . That is an important indication in the Arab World, which is still badly lacking in terms of participation . It is gradually improving but it will take a long time to reach its destination . Yet, universality remains the most important thing for different reasons . One is functional . The court cannot function properly or take certain situations if its jurisdiction is not accepted . Another is a matter of principle . Its mission is, by definition, universal . If a large part of the world is seen to escape its jurisdiction, it is not good for the institution . It will continue to be perceived, I wouldn’t say as a European court anymore, but at least as a court which is unable to deal with situ- ations where obvious crimes have been committed .
Dm: So that’s the first step .
PK: The situation is improving: 119 coun- tries is not bad when you compare, for example, with the International Court of Justice, where about 60 countries have accepted its compulsory jurisdiction after60 or more years of existence .
Dm: What do you see as the timeline for this? Is 60 years a realistic goal?
PK: I hope it will be before that . This is something that’s not been understood — how much it has been accepted in very little time . People focus on the fact that you don’t have major states — the U .S ., China, India, Russia — but they don’t compare . The International Court of Justice has none of those, either .
Dm: You’re now living in the South of France . Have you lived in Canada since you left for Sweden in 2003?
PK: No, because I went straight [from Sweden] to the Netherlands . [The ICC operates from The Hague] . Now I’ve moved to the South of France, not necessarily permanently but to discover a bit of sun in my life . My wife is here but my daughters are in Montreal, and my sister, also . So I do go back to Canada and they come [to the South of France] too .
The docket of the ICC
CONGO
Thomas lubanga Dyilo: Alleged founder of the Union des Patriotes Congolais (UPC) and the Forces patriotiques pour la liberation du Congo (FPLC), alleged commander-in-chief of the FPLC and alleged president of the of the UPC. He is charged with war crimes including enlisting and conscripting children under the
age of 15 into the FPLC and using them to participate actively in hostilities and armed conflict, both international and internal. His trial began January 2009.
Germain Katanga, aka “simba“ and mathieu ngudjolo Chui: Katanga is alleged commander of the Force de resistance patriotique en Ituri (FRPI) and Chui is the alleged former leader of the Front des nationalists et intégrationnistes. They are charged withwar crimes including using children under the age of 15 to take part in hostilities, directing anattack against a civilian popula- tion, willful killings, destruction of property, pillaging; sexual slavery and rape. They are also charged with crimes against humanity, including murder, rape and sexual slavery. Their trial began November 2009.
Bosco ntaganda: Former alleged deputy chief of the Forces patriotiques pour la liberation du Congo (FPLC) and alleged chief of staff of the Congrès national pour la defense du people (CNDP) armed group. He’s allegedly criminally responsible for three counts of war crimes including enlistment and conscription of children under the age of 15 and using children under the age of 15 to participate actively in hostilities. Mr. Ntaganda is at large.
Callixte mbarushimana: Alleged executive secretary of the Forces Democratiques pour la Liberation du Rwanda-Forces Combattantes Abacunguzi (FDLR-FCA). He’s charged with five counts of crimes against humanity including murder, torture, rape, inhumane acts and persecution and six counts of war crimes including attacks against civilian population, destruction of property, murder, torture, rape and inhuman treatment. His trial began in September 2011.
CENTRAL AFRICAN REPUBLIC
Jean-Pierre Bemba Gombo: Alleged president and commander-in-chief of the Movement for the Liberation of Congo (MLC). He’s charged with two counts of
crimes against humanity, including murder and rape, and three war crimes, including murder, rape and pillaging. His trial began in November 2010.
UGANDA
Joseph Kony: Alleged commander-in-chief of the Lord’s Resistance Army (LRA). He is charged with 12 counts of crimes against humanity including murder, enslavement, sexual enslavement, rape, inhumane acts of inflicting serious bodily injury and suffering. He’s also charged with 21 counts of war crimes including murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, inducing rape and forced enlistment of children. Mr. Kony is at large.
Vincent Otti: Alleged vice-chairman and second-in-command of the Lord’s Resistance Army (LRA). He’s charged with 11 counts of crimes against humanity, including murder, sexual enslavement, and inhumane acts of inflicting serious bodily injury and suffering. He’s also charged with 21 counts of war crimes including inducing rape, intention- ally directing an attack against a civilian population, forced enlistment of children, cruel treatment of civilians, pillaging and murder. Mr.
Otti is at large.
Okot Odhiambo: Alleged deputy army
commander and alleged commander of two brigades of the Lord’s Resistance Army (LRA). He’s charged with two counts of crimes against humanity, including murder and enslavement. He’s also charged with eight counts of war crimes, including murder, intentionally directing an attack against a civilian population, pillaging and forced enlisting of children. Mr. Odhiambo is at large.
Dominic Ongwen: Alleged commander of one brigade of the Lord’s Resistance Army (LRA). He’s charged with three counts of crimes against humanity, including enslavement, and inhumane acts of inflict- ing serious bodily injury and suffering. He’s also charged with four counts of war crimes, including murder, cruel treatment
of civilians, intentionally directing an attack against a civilian population and pillaging. Mr. Ongwen is at large.
SUDAN
Ahmad Muhammad Harun: Former minister of state for the interior and minister of state for humanitarian affairs of Sudan. He’s charged with 20 counts of crimes against humanity including murder, persecution, forcible transfer of population, rape, inhumane acts, imprisonment or severe deprivation of liberty and torture. He’s
also charged with 22 counts of war crimes including murder, attacks against the civilian population, destruction of property, rape, pillaging and outrage upon personal dignity. Mr. Harun is at large.
Ali Muhammad Ali Abd-Al-Rahman: Alleged leader of the militia/Janjaweed. He’s charged with 22 counts of crimes against humanity including murder, deportation or forcible transfer of population, imprison- ment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, persecution and inhumane acts of inflicting serious bodily injury and suffering. He’s also charged with28 counts of war crimes, including violence to life and person, outrage upon personal dignity, in particular humiliating and degrading treatment, intentionally directing an attack against a civilian population, pillaging, rape and destroying or seizing of property. He is at large.
Omar Hassan Ahmad Al Bashir: President of the Republic of Sudan. He’s charged with five counts of crimes against humanity, including murder, extermination, forcible transfer, torture and rape. He’s also charged with two counts of war crimes including intentionally directing attacks against a civilian population, or against individual civilians not taking part in hostilities, and pillaging and three counts of genocide, including genocide by killing, genocide by causing serious bodily or mental harm and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction. Mr. Al Bashir is at large.
Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus: The former is commander-in-chief of Justice and Equality Mouvement Collective-Leadership, one of the components of the United Resistance Front. The latter is former chief-of-staff of SLA-Unity and currently integrated into Justice and Equality Mouvement. They are charged with war crimes including violence to life, intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission and pillaging. Their case is at the pre-trial stage.
KENYA
William Samoei Ruto and Henry Kiprono Kosgey: Mr. Ruto is a suspended minister from Kenya’s government; Mr. Kosgey is a current member of parliament and chair- man of the ODM. They are charged with crimes against humanity including murder, forcible transfer of population and persecution. Their case is at the pre-trial stage.
Joshua Arap Sang: Currently head of opera- tions at Kass FM in Nairobi. He is charged with crimes against humanity including murder, forcible transfer of population and persecution. His case is at the pre-trial stage.
Francis Kirimi Muthaura and Uhuru Muigai Kenyatta: Mr. Muthaura is currently head of the public service and secretary to the cabi- net of Kenya; Mr. Kenyatta is deputy prime minister and minister for finance of Kenya. Both are charged with crimes against humanity including murder, forcible transfer, rape, persecution and other inhumane acts. Their case is at the pre-trial stage.
Mohammed Hussein Ali: Currently CEO of the Postal Corporation of Kenya. He is charged with allegedly contributing to the following crimes against humanity: murder, forcible transfer, rape, persecution and other inhumane acts. His case is at the pre-trial stage.
