The Privilege of Writing Many Firsts

For the close to 10 years I have written for the International Justice Monitor, almost every case has been a first.

Much of my work has been monitoring trials at the International Criminal Court (ICC), which is a young institution (it will be 20 years old in 2022). The ICC’s youth and its limited jurisdiction (war crimes, genocide, crimes against humanity, and crimes of aggression) guarantees much of what happens at the ICC will be a first for the foreseeable future.

But that is not all. Much of what I have written outside what happens at the ICC has also included a number of firsts because the issue of holding those responsible for international crimes is no longer limited to victims of such crimes or human rights campaigners. Regional inter-governmental organizations, national legislatures, and courts have had to confront the question of what their role is in dealing with cases of international crimes.

Among the firsts I wrote about was the case of Uhuru Muigai Kenyatta, who became the first serving president to face trial proceedings at the ICC. The charges against him were for crimes he was alleged to have been involved in before he became Kenya’s president. However, by the time the pre-trial phase of his case concluded and the trial proceedings began, Kenyatta had been elected president in March 2013. The ICC dropped the charges against him in December 2014 before trial hearings began.

Kenyatta’s deputy, William Samoei Ruto, also had a case before the ICC. Ruto became the first serving deputy president to attend court at the ICC as an accused person. Ruto’s case was separate from Kenyatta’s but just like Kenyatta he faced charges for crimes he was alleged to have committed before he was elected Kenya’s deputy president. His case went to trial but was terminated in April 2016 after the prosecution concluded their case against him.

Then there was the ICC’s first guilty plea deal involving Ahmed Al Faqi Al Mahdi, who was leader of the morality police in Timbuktu when Islamic extremists took control of that historic city in Mali between 2012 and 2013. Al Mahdi pleaded guilty to a single war crime for destroying nine historic buildings and the door of a historic mosque in Timbuktu. This was also the first case at the ICC involving the destruction of cultural heritage. Al Mahdi’s trial is also the shortest to date at the ICC covering one calendar year from the time the Niger authorities handed him over to the ICC in September 2015 to when the trial judges announced their unanimous judgment in September 2016, upholding the guilty plea agreement Al Mahdi reached with the prosecution.

By now, I guess you get the drift. But indulge me a little bit more. Another first I wrote about was when a defense team presented two affirmative defenses against what their client had been accused of. Lawyers for a former commander of the Lord’s Resistance Army, Dominic Ongwen, argued he could not be held responsible for the crimes he was accused of because he had been under duress and he had a mental disease.

The defense of mental disease during Ongwen’s trial brought to the fore the mental consequences of the crimes tried at the ICC. Much of the evidence presented at the ICC focuses on the physical consequences of the crimes judges are asked to make a determination on.

Four psychiatrists and one psychologist testified during Ongwen’s trial. The focus of their testimony was whether Ongwen’s mental capacity was so diminished that he was incapable of understanding the consequences of his actions. But as they explained the different ways the human mind deals with trauma and how this applied to Ongwen in the past and in the present, these experts could just as well have been speaking to the mental state of many of the witnesses who testified during Ongwen’s trial.

And, yes, at times writing about some of the testimony I have heard in court has been traumatizing. It has made me give pause and wonder how someone who has just described living through a horrific experience has been able to testify to their experience.

But it has not been all hard and difficult writing for the International Justice Monitor. One academic told me he considered my posts on the Ongwen trial, “required reading.” A lawyer compared me to the Portuguese football coach, Jose Mourinho, as he complimented my posts on the International Justice Monitor for presenting complex legal cases in a way the person on the street could understand.

My ego should have been suitably inflated, except for the small detail that I am a supporter of Manchester United, rivals of the Chelsea football club that Mourinho is best known for managing to the top of the British Premier League. The lawyer did not know this, so he is forgiven.

Writing for the International Justice Monitor has been a daily affair, especially when the trials I am covering have been in session. Unfortunately, this is a “luxury” not many have had. News organizations may consider the trials important and worthy of coverage but have to stretch ever shrinking staff and finances to meet never ending demands. Ditto human rights organizations. Ditto victims directly or indirectly affected by the trials.

It has been a privilege. Thank you.

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