Dead...and Guilty: Decision in Delic finally reached!

Over 9 weeks after the death of Rasim Delic during the appellate procedure at the ICTY, the Appeals Chamber has finally reached a decision on the termination of the proceedings. It's an interesting case, because it is the first time that an appellate body of an international criminal tribunal has to deal with such a situation. In all other cases, the person had died before completion of trial proceedings. Both Delic's lawyer and the prosecutor had filed motions in support of the continuation of the proceedings, based on the interests of justice and of the family's right to know the truth.
Several legal issues of interest had to be considered, which I briefly laid down at the time of his death. Basically, 1) should the proceedings continue and 2) if they are terminated, what happens to the trial judgment.

In its decision, the Appeals Chamber decides to terminate the proceedings and render the trial judgment final.
On the first point, it argues for the termination based on the personal jurisdiction of the Court, citing examples from other tribunals having dealt with this issue.
On the second point, the Chamber first shows that there is no uniform practice among civil law and common law traditions that would enable it to establish a general principle of law applicable to the specific situation. It therefore does an analysis based on the nature of the appellate proceedings, where contrary to trial, the presumption of innocence does not apply. It therefore concludes that (§15):

"Having found that the death of the appellant results in the termination of the proceedings and given that no appeal judgment can be rendered in this case, nothing can undermine the finality of the Trial Judgment. As a consequence, the Trial Judgment shall be considered final".

It's not a surprising decision on the substance, and the Chamber did make an effort to provide reasoned arguments, in difficult circumstances where, as often, judges have been left to deal with poor drafting and a most amazing normative void. There are however some questions that can still be raised on the argumentation.

For one, the Chamber draws no link whatsoever between the two aspects of the decision, the termination of the proceedings and the finality of the trial judgment. It decides to terminate the proceedings, and then in effect uses that finding as a reason to declare the judgment final. But the question of the presumption of innocence is also central to the termination of proceedings. Indeed, when trial chambers in various courts have terminated proceedings, the person benefited from the presumption of innocence and therefore died innocent. That is not the case at the appellate stage, according to the Appeals Chamber's reading of the ICTY framework. This is a fundamental difference and should have at least warranted some discussion on the part of the judges.

Second of all, one can question the link between the lack of presumption of innocence at the appellate level and the finality of the trial judgment. One could argue that it is mostly a procedural question, with a different distribution of the burden and standard of proof at this stage of the proceedings, and has no impact on the finality of the trial judgment, especially as the whole point of the Appeal is that the trial judgment is not final. It's a false "but for" causality approach. "But for" the Appeal, the trial judgment would be final. But that is always the case, even if there were application of the presumption of innocence at the appellate stage! For example, where a Prosecutor has appealed an acquittal, the death of the defendant could still be said to finalize the trial judgment, despite the presumption of innocence certainly applying to these crimes for which the acquittal was pronounced... I therefore think the Court should have found another basis for its ruling. And no, I don't have any other ideas, given that I personally would have put an end to the proceedings ab initio. This would be based on a global concept of criminal proceedings that include both Trial and Appeal phases, both degrees of jurisdiction being actually recognised by human rights instruments as part of fair trial rights, their conditional application being solely dependent on the exercise of the right by the accused, which he did here.

Third of all, the Appeals Chamber touches upon a persistent grey area, namely the nature of the appellate proceedings. It might not be a trial de novo and the presumption of innocence might not apply, as the Appeals Chamber claims, but how is that compatible with the systematic practice of the Chamber to review evidence in a similar fashion to a Trial Chamber, increase sentences and even sometimes reverse "not guilty" findings, where you can't really argue that the presumption of innocence doesn't apply! There are several ways in dealing with these difficulties, especially in the last situation, by for example denying a right of appeal for the prosecutor in cases of not guilty verdicts, or requiring automatic remanding to a trial chamber, as is the case for most systems where the Appeals Chamber has a similar role. Right now, the Chamber has devised a system where it can have its cake and eat it, depending on the flavor...

Finally, and more generally, the 9 weeks it has taken to issue a 9 page decision (including the procedural history) essentially based on legal opinion in the absence of statutory rules, following the 18 months during which the appeals judgment was not rendered in what was not the most complicated case in the history of international justice, is a further testimony to the Tribunal's chronic incapacity to render justice in a efficient way in conformity with fundamental fair trial requirements. You could even say that if the Appeals Chamber had done its job correctly the issue of Delic's death might not have been an issue at all...
And the worst part is that the tribunals don't even seem to acknowledge this difficulty, hiding, among other things, behind the complexity of the situations. This recent decision at the ICTR is interesting in that respect, where more than 9 years of detention before the trial judgment and more than 2 years without an Appeals Judgment being rendered was not considered undue delay! See particularly the dissenting opinion where Judge Short clearly finds that it is undue delay, and specifically considers the appalling personnel management of the ICTR, which assigns too many cases to the judges, thus preventing speedy justice.

World Cup Interlude

Since the beginning of the World Cup, I've been racking my brain to find some link with international law to justify posting about it. I did find this unlikely link a few weeks ago, when Bashir was threatened with arrest if he showed up for the opening match. Since then, there hasn't been much.

You could probably find some international law connection with the two Dutch supporters arrested for wearing orange mini skirts offered by a beer brand not a official sponsor. According to this article, there seems to be an exceptional national law that allows for the arrest. One would have to see the conformity of this with constitutional norms and international human rights standards...

Even more of a stretch would be to discuss the international law nature of FIFA regulations in light of its hypothetical status as an international organisation. It's technically an association under Swiss law, with the national football federations (and not States) as its members  (thank you to an astute reader for pointing that out to me). But with some "outside the box" thinking, one could come up with a de facto nature as an international organisation, in light of its powers... I said it was a stretch! If that works out, what kind of international law responsibility wouldit have following mistakes made by referees, which are arguably its agents? When you see the outlandish decision disallowing the third US goal yesterday, it's a legitimate question.

In relation to that, you could also make a study of international law interpretation when referees systematically penalize forwards trying to prevent the ball from going out for a goal kick, when the defender is blocking it. This is clearly an obstruction, as the defender never has any intention of playing the ball. But it is tolerated here, because beyond the black-letter interpretation of the law, it supposedly fits with the "object and purpose" of the rules. So the question beckons: does the Vienna Treaty apply to FIFA game rules?

Apart from these vague links with international law, the only topics I could think of are: the ridiculous decision of FIFA to prevent local vendors from selling food around stadiums to protect official sponsors, thus defeating the purpose of having a world cup in Africa, the surprisingly poor level of some of the major teams such as Spain and England, the unsurprisingly poor level of France, the more than annoying vuvuzelas, tolerated because they are supposedly "traditional", when in fact they are a mere savvy commercial endeavor...

No, as much as I would want to, I can't come up with any really relevant topics justifying a post on the World Cup on this blog...

Deja Vu at the ICC: New Suspects Appear for the Same Crime

This week, two new suspects have voluntarily surrendered to the ICC. According to the decision on the Prosecutor's request, Banda and Jerbo are alleged to have participated in an attack on African Union soldiers that left 12 dead, 8 injured, and led to the pillaging of material. If this gives you a weird feeling of déjà vu it is perfectly normal, given that these two suspects are being charged with the same crimes as Abu Garda, whose case was dropped last February, when PTC I declined to confirm the charges against him.

What's interesting in the discussion of the pre-trial chamber on the reasonable grounds to believe that these two individuals committed a crime within the ICC's jurisdiction is that the arguments systematic link them to Abu Garda in the planning and execution of the attack. Given that the confirmation of charges later failed to find evidence of Abu Garda's presence during planning meetings and during the attack, one has to hope that the Prosecutor's case doesn't take the same route...

Another interesting, and puzzling, point is this part of the press release from the OTP:

Banda and Jerbo are the second and third persons respectively, to appear before the Court voluntarily in response to a summons. They were initially charged together with rebel commander Bahar Idriss Abu Garda, who voluntarily appeared before the Court on 18 May, 2009. Following his confirmation hearing on 19 October, 2009, ICC judges found that the attack constituted a crime under the Statute but that the evidence was insufficient to establish his individual criminal responsibility. The Prosecutor will therefore present additional evidence in a new confirmation hearing.

 Is the prosecutor implying that he's going to provide new evidence on Abu Garda in the Banda and Jerbo confirmation hearings? This is strange, as the ICC press release makes no mention of the reopening of the Abu Garda case. In any case, as the cases are not joined, I would expect that new evidence against Abu Garda should be put forward in a different procedure. If anyone has any insight on this OTP statement, it would be welcome.

I would expect the Confirmation hearing to take place quite fast, and a decision to be rendered shortly after that, given that all the preliminary work on the attack was done in the Abu Garda case. Indeed, before finding that he was there was not sufficient evidence to link him to the attack, the judges (with a separate opinion from Judge Tarfusser) went into a lengthy analysis of the factual and legal situation, establishing the nature of the attack in a non-international armed conflict and that the African Union benefited from civilian protection. Having established the crime, all they have to do now is link (or not) the defendants to the attack. Of course, they could also profit from the situation to finally make a gravity assessment, which is, as I've said before, time and again ignored by the chambers. I suppose there is no really to hope that they will do it this time...

All in all, maybe this will work out fine, but, especially after the Abu Garda fiasco, it's difficult not to be at least a little skeptical...

When metaphors ruin the argument: Rwanda, Israel and negationism

Famous genocide scholar and Rwanda expert, Gerald Caplan, recently published an op-ed on the events surrounding the arrest of both Victoire Ingabire and Peter Erlinder in Rwanda on charges of "genocidal ideology". The article highlights some interesting aspects of the situation, denouncing the lack of perspective of those who criticize the Rwandan government without taking into account the entire situation. However, the author falls into the same trap in the other direction and his article is problematic in many ways, despite its good intentions.

For one, he embarks in a haphazard comparison with holocaust denial in Israel. Here's how that works:

An enigmatic, controversial woman returns to Israel after decades away and announces she's running for Prime Minister.

She regrets the Holocaust, but after a tour of Yad Vashem, the country's main memorial to the genocide of the Jews, she can't help asking why no one bothers recalling all those good people that were killed by Jews resisting the Nazis. In fact she says not even sure whether more Germans or more Jews were murdered.

The Israeli authorities decide to take her seriously. She's imprisoned, awaiting trial.

Soon her lawyer appears, from another country. He proves to be one of the world's most notorious Holocaust deniers. The Law Society of Upper Canada (i.e. Ontario) writes to remind the Israeli government that UN protocols protect the right of a lawyer to perform his/her professional functions without hindrance. The responsibility of the Law Society, its website tells us, is to ensure that "the people of Ontario are served by lawyers and paralegals who meet high standards of learning, competence and professional conduct". And the people of the world, as well. Their letter fails to mention the lawyer's views on the Holocaust.

The Israeli government unceremoniously throws the lawyer-denier out of the country. Despite UN protocols, the world cheers.

And the conclusion is that:

This story never happened in Israel. It is happening right now, with minor situational variations, in Rwanda. But the world's reaction is entirely different. 

Gerald Caplan says there are "minor situational variations"... But, I fail to see how the differences are not "major". The comparison with Israel does not really work. For the comparison to work, you would need a jew to actually fight and win a bloody civil war in Germany and gain power there, thus becoming the leader of a majority population that is considered to have in large numbers contributed to the genocide. Surely that makes the political reality and sociological evaluation far more complex. The comparison as it stands is certainly flashy, but is not really helpful. It looks like a variation of world-famous Godwin's Law, according to which any debate will end up with a reference to Hitler or the Nazis. In this case the variation is that there will always be a holocaust reference to advance an argument, however irrelevant this is...

On the substance, I find it disturbing that an academic gives so little thought for the real question of the link between criminally prohibiting revisionist discourse and the freedom of expression. The arguments for free expression are strong and can't so easily be brushed aside, even if one does need to take into account the fragile situation of a country, only some years after such a scar on its history. And it is not really an answer to say that such discourse is banned in other countries. Mere examples do not constitute an argument. The fact is that one can legitimately consider that there is always a risk when law has a say on the content of history, with Orwell's 1984 as a extreme, but perfect example. Some at least lip service for this would be the minimum to expect for an honest intellectual assessment of the issue.

A second point is the totally one-sided view of the political situation. As I've had the opportunity of saying several times in this blog, the genocide totally obscures the reality of the situation in the great lakes. For one, it is well documented that the FPR was involved in large scale massacres in their conquest of the country in 1994. This doesn't justify Ms. Ingabire gross exaggeration of the numbers, but one should at least have the right to say it. In the same way, in relation to Erlinder, I had sort of understood that the scope of the genocidal plan has been circumscribed by the ICTR itself, the intent not necessarily attributable to some parts of government and the military. As for today's situation, maybe Ms. Ingabire is linked to extremist Hutu in Eastern Congo, as the author suggests, but it is also true that Kagame, with the support of Uganda, has been an integral part of the destabilisation in the region, for equally pragmatic reasons as taking over areas rich in minerals. There is a general leniency towards the Kagame regime that is most problematic, and on the long run, not necessarily helpful. It must be possible to condemn the genocide at the same time criticize the excesses of the regime and denounce the crimes committed by the FPR.

Finally, Gerald Caplan concludes with this remark:

But then, why would he listen to an outsider like me? I did nothing in 1994 to try to stop the genocide. Why would he listen to any of those who support Erlinder's rights without even alluding to Erlinder's inflammatory views? Why should the ban on genocide denial not apply to him? Who has earned the right to tell this Rwandan nation, abandoned and betrayed by the world a mere 16 years ago, how to deal with the fear of renewed genocide? Who would dare lecture Israel on the rights of Holocaust deniers?

 This seems to make sense on the face of it, but doesn't really. For one, does past conduct mean that one can never say anything again? this means, given the history of all countries, that nobody is legitimate to express outrage about anything that happens in the present. Secondly, and more importantly, it is an ontological no brainer for anyone working in ICL, human rights and genocide prevention, and more generally for any outsider. Who are we ever to say anything about anything? who are we to even condemn a genocide? If the author really believes in what he says, he should consider a career change...

The Israeli intervention: more legal questions on the Application of IHL and Aggression

The story on everybody's mind since Monday is of course the Israeli's ultimately bloody take over of a Turkish ship in international waters of the coast of Israel. Beyond the complex political situation, which I will try to avoid considering here (although I do find Turkey's official support of the activists ironic given its own track-record in terms of human rights and refusal to acknowledge Kurdish pleas for independence, or at least autonomy), this situation raises a incredibly large array of legal questions, some of which are being dealt with already.
There is the question of whether this is an act of piracy, which I think is unlikely given the definition given in UNCLOS, as is developed here. The question of the legality of Israel's blockade of Gaza has also given rise to a dense debate on Opinio Juris and the issue of whether the ICC can and should exercise jurisdiction for these events has been considered by Professor Schabas.

I'd like to briefly raise some additional issues that are puzzling me, and in fact relate to some of the previous arguments made.

For one, everybody is assuming the application of IHL to the situation, due to the conflict in Israel, or evaluating its application in light of the conflict between Israel and Hamas. Professor Schabas does this in his link by saying that the it would constitute a war crime because the situation in the occupied territories and Gaza in particular is an armed conflict. I find this quite unpersuasive, or at least to be explained. The facts are that Israel boarded a ship sailing under a Turkish flag in high seas. There is of course a political link with what is going on in Gaza, but is there a legal one? I would argue that there isn't and that the fact that there is an armed conflict in the occupied territories is irrelevant.One rather needs to evaluate the existence of a conflict between Israel and Turkey in order to apply IHL to the situation. This is a strong methodological disagreement, but has few practical consequences. Indeed, it seems generally accepted (see the ICRC opinion paper) that a single event of military nature can trigger the application of IHL. In any case, given Tukey's jurisdiction over the boat, the act can definitely prosecuted under national criminal law, and it is in this context that the claims to individual self-defense must be assessed.

Which leads to my second point, which is interesting in light of the ongoing debates at the ICC Review Conference in Kampala, is whether the Israeli intervention constitutes an act of aggression against Turkey. I'd say it probably constitutes an unauthorized use of force under the UN Charter, but does it rise to the level of Aggression? After a perfunctory reading of Resolution 3314 of the Assembly General on the definition of aggression, there are at least two categories listed in Article 3 of the Resolution that could seem to apply on the face of it:

"Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
[...]
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;"

This would apply assuming that a ship sailing under a Turkish flag, over which Turkey has exclusive jurisdiction, is considered as Turkish territory for the purposes of establishing an act of Aggression. I'm not familiar enough with the Law of the Sea to say for sure, but it would make sense. If such a qualification did apply, Israel's international responsibility could be engaged.

In relation to the this point, what is, if any, Turkey's responsibility under international law? As the country of nationality of the ship, it must be responsible for the actions of the ship to some extent. One can imagine that Israel could claim that Turkey failed in its international obligations by supporting the breaching by a ship carrying its flag of the territorial sovereignty of another State, despite that State's systematic opposition to such entering in its territorial waters (this of course raises questions on the "excuses" that Turkey could put forward in terms of the provision of humanitarian aid in a situation of armed conflict and the correlative claims from Israel that the political claims associated to the endeavor would deny neutral status).

Some thoughts on Aggression: reopening settled debates

One of the pressing questions being considered at the ICC Review Conference in Kampala is the definition of the crime of aggression. In relation to that I wanted to share the article I wrote that was published this year on the topic (you can download it here), under the title "THE SHEEP IN THE BOX: THE DEFINITION OF THE CRIME OF AGGRESSION AT THE ICC".

For those who can't be bothered reading it, I basically put forward the idea, which is arguably unrealistic, that the current negotiations have in fact reopened debates that were settled in Rome for the other crimes. For example, the leadership requirement which is debated is for me unnecessary, given that the ICC will in any case exercise jurisdiction over only those deemed most responsible. Another example is the modes of liability, which are already sufficiently dealt with in Article 25. A final example is the role of the Security Council, Article 16 having already been included to alleviate fears of interference of the ICC with the SC's work in relation to peace and security. I therefore argue that we should apply the Statute as it stands whenever possible.

Why is that the case? At a ASIL webinar I attended last week, David Scheffer defended this approach based on the exceptional complexity of the crime of aggression, especially its political dimensions and interaction with State responsibility. It is certainly true that the crime of aggression is complex... but so are the other crimes within the jurisdiction of the Court, especially genocide and crimes against humanity. Both of these are politically sensitive crimes and imply the evaluation of State policies. Moreover, the Bosnia v. Serbia ICJ case is obvious proof (if based on debatable legal reasoning, but that's another issue...) that there are potential State responsibility considerations as well. The reasons put forward to single out the crime of aggression can therefore equally be leveled at other crimes and don't per se justify, legally in any case, the current debates.

I do put forward  one new idea of resuscitating the Nuremberg idea of "criminality of organisations". Despite its controversial aspect, I do believe that it can more aptly cover the collective nature of the decision making process of such a crime.

As for the "sheep in the box" reference in the title, I invite you to read the whole article if you want to find out...