Some thoughts on what happened at the ASP of the ICC: change the policies before discussing people or budget

The Assembly of State Parties just finished its 10th session in New York. The high point of this session was the selection of the next ICC Prosecutor, to replace Luis Moreno Ocampo, and the winner, unsurprisingly, was Fatou Besouda, the current Deputy Prosecutor. Another issue was the election of new judges and determination of the 2012 budget. At the end of this session, I wanted to share a few thoughts.

On the choice of Fatou Bensouda as prosecutor, I broadly share the enthusiasm of a number of commentators, such as Kevin Heller over at Opinio Juris, Mark Kersten at Justice in Conflict or Bill Schabas. In the few times I have met her, she has come across as thoughtful and pleasant, and seems to have a decidedly less "gritty" style than her soon-to-be-predecessor.
But I do have some lingering concerns. As I said when her name started floating around (see comments section here), I don't think we can just brush under the carpet the fact that she has worked with Luis Moreno Ocampo for the past 8 years. He is certainly personally to blame for a number of errors of the OTP, most notably in terms of communication, but I cannot believe that he is alone responsible for all the blunders of his office. Under his mandate, 2 cases have not been confirmed by a Pre-Trial Chamber (Abu Garda, and more recently Mbarushimana) and the conduct of the OTP in the Lubanga trial should have led to the suspect's release in a number of situations and possibly the removal or at least sanction of the prosecutor. I can't imagine that Ocampo did not have some support from his office, including Bensouda, for a number of these disasters. In this sense, I'm not sure that continuity is such a good thing.
More generally, I'm not entirely convinced that the general rhetoric of having an African Prosecutor is convincing. I don't see how the criticism of the ICC being an "African Court to Prosecute Africans" is addressed by the designation of Bensouda. This will just be an "African Court to Prosecute Africans by an African"... The real issue is not the nationality of the Prosecutor, it is the policies that are implemented. In this sense I perfectly agree with Bill Schabas, that the nomination of Bensouda can only go so far to mend the perceptions of the Court. Only a change in policy will make any real change in perceptions.

I also wanted to share a few thoughts in relation to the public outcry on the only marginal increase of the budget of the Court. These concerns are relayed here by Mark Kersten.
On the face of it, the 117 million euro budget that was requested by the Court does not seem unreasonable for a permanent international criminal tribunal that is currently involved in 7 countries, with a number of others on the waiting list. As a comparison, this is about the recent yearly budget of the ICTY, involved in only one country, and which is winding down its activities. Certainly, the CICC and Mark are right to express doubts at whether the Court will be able to perform in the future if the increase in activity is not followed by an increase in budget.
But this legitimate question must not prevent us from questioning the way the money is spent. There are some rather futile examples of misspending, such as a full page ad in the Economist. Equally, one could bicker about the salaries that are paid at the Court, which sometimes seem extravagant, especially to the humble university Professor that I am. But more fundamental questions should be raised in terms of priorities and mistakes. How much did the Mbarushimana and Abu Garda investigations cost, for such a poor result? How much has the poorly designed (and made worse by the judges) victim participation system cost the court in money and in time (and therefore in money)? Also, the Court complains that the UNSC is referring situations without contributing to the budget. I have a solution for that. Don't take referrals from the UNSC anymore. For one, they are in some respect contrary to international law, but more pragmatically, doesn't the Court have enough on its plate with State Parties, without delving into the affairs of non-State Parties? These are just a few policy considerations that need to be addressed in order to have a full and comprehensive discussion on the budget.

On a final note, I couldn't help but react at Mark's conclusion:

In the end, there is a grave danger that money determines who receives justice and who doesn’t; that funding defines the quality and extent of justice served. It would be a sad world to live in and one in which international criminal justice’s skeptics and cynics win.

I don't know in what world my esteemed colleague has indeed been living in to make such a statement, but in the one I live in, this is already the case, and not just at international tribunals. We live in a worlds of limited means and ressources and there is always a limited budget for any institution, both nationally and internationally, and, in other words, never enough money. I think that one can say that without being labelled as a "cynic" or "skeptic". That's just the nature of things. More specifically, all the national examples of criminal systems are suffering from too many cases, where the exercise of discretion is necessarily also based on the question of limited means, and where release decisions from prison are for example based on them being too full, rather than on criminological reasons. And one criteria to discriminate one case from another, is gravity, which is either ignored or misapplied at the ICC. Again, for me, neither Lubanga (at least for these charges), nor Abu Garda, should have been prosecuted before the Court, irrespective of money.

In this sense, I would conclude in the same way as for the nomination of Fatou Bensouda: change the policies, in order to change anything. One can pour in as much money as one wants in the institution, if the policies are unsound, it won't make a difference to the objectives of justice of the Court.

Self Promotion: Who is in charge of the charges at the ICC?

I've just published on SSRN the draft of my upcoming chapter in the THE ASHGATE RESEARCH COMPANION TO INTERNATIONAL CRIMINAL LAW: CRITICAL PERSPECTIVES (William A. Schabas, Niamh Hayes, Yvonne McDermott and Maria Varaki, eds.).  In it, I consider the powers of the various organs of the ICC in defining, amending and recharacterizing the charges, especially the infamous Regulation 55 which was at the heart of the controversy surrounding the attempt by the Trial Chamber in Lubanga to introduce new charges of sexual violence during the trial and which I commented on here and here.

Here is the abstract:

One issue that has come to the fore in the early practice of the International Criminal Court (ICC) is the question of who determines the content of the charges against an accused individual and the scope and timing of any amendments that are to be made. The importance of this issue is threefold. First, having a clear framework for the amendment of charges is important from the point of view of the accused. If he or she is to have adequate time for the preparation of the defence, it is important that there be some certainty as to the charges resting against him or her, without running the risk of multiple amendments. Second, the issues are illustrative of the more general concern in the ICC Statute to achieve a balance between legal certainty and judicial efficiency. The former requires that as few amendments as possible be allowed the more advanced the proceedings are, whereas the latter opens to door to some flexibility to avoid acquittals based on a faulty determination of the charges. Third, as will be illustrated in the course of the chapter, it more generally highlights the difficult balance of power to be struck between various organs of the Court, not just between the Prosecutor and the Chambers, but also between the Pre-Trial Chamber and the Appeals Chamber, and begs the question as to whether the judges of the ICC ought to have the final say in matters that might seem to relate more to a legislative rather than judicial function.

Please don't hesitate to circulate, and all comments are welcome!

A Sad Hommage to Antonio Cassese: The ICC's confused pronouncements on State Compliance and Head of State Immunity

This week, Pre-Trial Chamber I of the International Criminal Court has been busy reprimanding African States for non-cooperation in executing the Arrest Warrant against Sudan President, Omar Al Bashir. On Monday it issued a decision on the failure of Malawi to comply and yesterday, a similar decision was issued in relation to Chad (decision in French).

This could have been a fairly innocuous event. In the past 18 months, the PTC has on several occasions taken notice of the presence of Bashir in an African country (Tchad and Kenya in August 2010, Djibouti in May 2011). Each time, in short decisions, the judges found that these countries had not complied with their obligation under the statute as State parties to enforce the arrest warrant against the Sudanese president. So the two decisions this week would seem to fall in line with these previous findings, a normal day at the office so to speak.
Of course, the question still remains whether State parties are 1) actually under an automatic obligation under the Statute to execute an arrest warrant and 2) whether the general requests for the arrest and surrender of Bashir to all States that the Pre-Trial Chamber issued in 2009 and 2010 (respectively here and here) are actually in conformity with the Statute. I have already argued that the answer is negative on both counts because Article 89(1) provides that you need a request from the Court to have an obligation under the Statute and that, for the sentence "...any State on the territory of which that person may be found" (as opposed to just "any State") to make any sense, the request must be specific and specifically justified, rather than be general and preemptive. This is confirmed by the very specific information that must be provided with the request under Article 91.
But again, the two recent decisions would generally be old news already if they had followed the exact same approach as previous ones.

However, the Pre-Trial Chamber has decided to be bolder this time and address the question of head of State immunities, both under Article 27(2) of the Statute and in relation to Article 98(1) of the Statute, and the articulation between the two. The reasoning of the Chamber is so confused and unsatisfactory that it is difficult to know where to start.

Before I move to the heart of the discussion, I wanted to point a minor procedural issue, but that is illustrative of the general sloppiness of the drafting. When a Chamber makes a finding of non-compliance with a request for cooperation under Article 87(7), Regulation 109 of the Regulations of the Court (drafted by the Judges themselves) provides that the President shall refer the matter to the ASP or the UNSC. However, the Malawi decision ignores this and orders that the Registrar transmit the decision. This is all the more surprising, that the Chad decision (in French) actually uses the correct procedure and explicitly refers to Regulation 109 to ask the president to transmit the decision. This inconsistency comes up, despite the bench being composed of the same judges. Apparently, the francophone Assistant Legal Advisers at the Court are more knowledgeable than the anglophone ones...

But let's now come to the question of Articles 27 and 98(1), relating to head of State immunities.

• The discussion of Article 27

First of all, the judges consider the issue of Immunity of Heads of States in International Proceedings (§§22-36 of the Malawi decision. In the remainder of the post, I will refer to this decision, which is broadly reproduced in the Chad one).
Going back as far as 1919, the PTC refers to a string of international judgments (Nuremberg, Tokyo, ICTY and even ICJ), statutes of international tribunals (ICTY, ICTR, SCSL) and other documents (Principles of International Law recognised in the Charter of the Nuremberg Tribunal, Draft Code of Crimes against the Peace and Security of Mankind) to conclude that (§36):

"Therefore, the Chamber finds that the principle in international law is that immunity of either former or sitting Heads of State can not be invoked to oppose a prosecution by an international court. This is equally applicable to former or sitting Heads of States not Parties to the Statute whenever the Court may exercise jurisdiction."

 The Chamber seems to think that the sheer number of references will make their argument compelling. But this is a typical judicial application of the "cheerleader effect": all the references look good together, but taken separately might not be so convincing. Indeed, the references actually concern two distinct issues. The first one, which is dealt with in Article 27(1) of the ICC Statute, is whether official capacity can remove the criminal responsibility of a person. The second one, dealt with under Article 27(2) of the ICC Statute, is whether head of State immunity can prevent an international Court from exercising jurisdiction. There is no debate about the first question in the current case, only about the second one so the following references are just irrelevant: Statute of the IMT, Statute of the Tokyo Tribunal, UN Principles, Code of Crimes, ICTY Statute, ICTR Statute and SCSL Statute. Which leaves us with more or less one relevant source, which is the ICJ Arrest Warrants Case.

In any case, from a methodological point of view, it is puzzling why the Chamber actually engages in these developments. As is often the case in international criminal decisions, there is a very "flexible" approach to the sources of law. The PTC does not, at any point, justify why these references are even invoked. This is especially troubling at the ICC, because the drafters of the Rome Statute, contrary to those of others Statutes of international criminal tribunals, actually chose to include an explicit provision on the Applicable law, which clearly provides (Article 21(1)(a)) that the Statute, RPE and Elements of Crimes are the first documents to be considered. Article 27(2) clearly says that head of State immmunity "shall not bar the Court from exercising its jurisdiction over such a person". There was no reason whatsoever to give a lecture in the history of international prosecutions to reach the conclusion that is already mandated by the Statute.

One could of course question whether applying 27(2) to the Heads of States of non-State parties is contrary to international law, but that is not the judges' problem. I've argued elsewhere that the whole UNSC referral mechanism is somewhat contrary to international law. But once the case actually comes before a Chamber, the judges are bound by the Statute and should apply 27(2). Should this mean that the ICC, as an institution, would be violating international law is not the judge's concern. Sudan should raise the question of the responsibility of the ICC, as an International organization, or even its member States, which would be a nice case of Shared Responsibility. But again, not an issue for the judges. In this sense I actually agree with the Tadic Trial Chamber, which refused to consider the legality of the creation of the ICTY. It was not its function to do so.
But I digress. In a nutshell, the PTC could have just referred to 27(2) and moved on (although the whole discussion on 27(2) is in my opinion irrelevant, but more on that later).

• Articulation with 98(1)

Article 98(1)provides that:

"The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity."

 The Chamber considers that there is a tension between 27(2) and 98(1) (§37). To solve this tension, it further pushes its reasoning in relation to international prosecutions of heads of States. Stating that there has been an increase in Head of State prosecutions by international courts (citing Taylor, Gbagbo and Gaddafi), the PTC says that this has gained "widespread recognition as accepted practice" (§39). This practice is further illustrated by the ratification by 120 States to the Rome Statute (and therefore to article 27(2)) and by the fact that some Security Council members who have not joined the Court have agreed to refer situations to the Court. The judges therefore conclude, in what can only be described as "armchair legal reasoning", that (§42):

"The  Chamber  considers  that  the  international  community's  commitment to rejecting  immunity in  circumstances  where  international  courts seek  arrest for international crimes  has  reached a critical mass. If it ever was  appropriate to say so, it is certainly no longer appropriate to say that customary international law immunity applies in the present context."

 There would certainly be a lot to say about the Chamber's approach to determining the content of customary law, although it does at least refer to State practice, which is far less egregious than what the Special Tribunal for Lebanon did last year, when referring to the practice of international courts not contested by "States, non-state actors and other interested parties", to determine the existence of a customary norm. The key point, however, is that the practice that is referred to, is only evidence of the potentially customary nature of Article 27(2). It does not, as the Court affirms, relate to the question of the arrest and surrender  of an accused.

In this sense, I believe that there is in fact no tension between 27(2) and 98(1), because these two provisions are not about the same thing! Article 27(2) relates to the jurisdiction of the Court itself and 98(1) to obligations of States in relation to other States in general international law. Moreover, if the drafters of the Rome Statute believed that the inclusion of Article 27(2) meant automatically that there was an obligation to cooperate with the ICC irrespective of head of State immunity of non-State parties, why include Article 98(1) at all? It would make no sense.

So clearly, the Court has in fact brought into the discussion Article 27(2), when it should have kept its discussion limited to 98(1). The only relevant reasoning that would have been acceptable was whether, given the phrasing of 98(1), there is a crystallizing rule under international law that head of State immunity does not carry in the national context, which would therefore remove the difficulty with 98(1). This would have involved a more serious discussion of the Arrest Warrant Case, and evolution since then. But again, this is sadly not what the Chamber did, instead rendering a muddled and inappropriate decision.

This is all the more inappropriate given the fact that the Chamber, in considering the obligations of Malawi, makes a key finding (even if it had been said before) on the application of Head of State immunity to a defendant in a procedure that is not designed for that, which raises questions in relation to the rights of the defense, given that the Office of the Public Counsel for the Defense does not seem to have been involved in the discussions and that this is not a decision which is subject to appeal under Article 82. In that respect, one can even question whether the term "decision" is appropriate for such a document. Indeed, Article 87(7) does not even seem to describe a formal procedure. It refers to "a finding" of non-compliance, rather than a "decision", whereas the Statute uses the word "decision" in most of the Statute, and only uses the term "finding" twice, in relation to evidence, and in the context of Article 87(7). The French version, which says that the Court "peut prendre acte" of the non-compliance, leans even more to the less formal nature of the determination. As for the question of Regulation 109, this might seem like a detail, but it does contribute to the general impression of a less than precise job that is reflected in the heart of the discussion, as illustrated previously.

• A sad hommage to Antonio Cassese?

The explicit reference to the late Antonio Cassese, not only in a footnote, but in the main text (§34), can only mean that this decision is seen as an hommage to one of the most active proponents of judicial creativity. But it is likely that the former President of the ICTY and STL, although he might agree with the final result, would himself cringe at the less than convincing legal reasoning of the Pre-Trial Chamber.

This Decision might be a testimony that his legacy of creativity lives on, but without his talent, judgments that were, despite the criticism that could be leveled at them, judicial symphonies, when crafted by him, sound like children randomly hitting the keys of an out-of-tune piano, when crafted by others.

UPDATE 1: For other critical assessments of the decisions, see Professor Schabas and Dapo Akande, who are both skeptical about the court's reasoning.

UPDATE 2: in relation to Regulation 109, there has been a corrigendum to the original decision which correctly asks the President (and not the Registry) to refer the matter to the ASP and UNSC.

The ICC should resist its "Boy Scout Mentality" in relation to Vatican "Crimes against Humanity" for child abuse

Cross posted on the Invisible College

Earlier this week, the Center for Constitutional Rights (CCR) submitted, on behalf of the Survivors Network of Those Abused by Priests, a communication  to the International Criminal Court requesting that an investigation be opened for Crimes against Humanity committed by high-level Vatican officials.
In a nutshell, the submission argues that there is evidence of widespread and systematic abuse (both rape and torture) of a civilian population by priests in a number of countries and that the Vatican, and more specifically Joseph Ratzinger, both in his former capacity as Prefect of the Congreation of the Doctrine of the Faith, and current capacity as Pope Benedict XVI, should be held liable for covering this up, even to the point of promoting it (this last point is a little ambiguous and I'll return to it later).

This idea has been floating around for a while now. Geoffrey Robertson published a book last year arguing for such an approach. I remain skeptical however and think that there are a number of difficulties with the submission.

As a preliminary remark, one should remember that the Prosecutor is under no obligation to proceed from here, neither to open a preliminary examination, nor, of course, to open a formal investigation. The submission by the CCR does not "trigger" the jurisdiction of the ICC, as would a referral by a State Party of the Security Council, and the OTP is not even under an obligation to respond to the submission (although it claims that, for reasons of transparency, it generally will "aim" to respond to communications).

I would like to comment on three aspects: jurisdiction, the scope of the situation, and finally on whether the crime is actually constituted.

• Jurisdiction

First of all, it should be pointed out that the Prosecutor, should it proceed with an investigation, would only be able to look into crimes that were committed after the entry into force of the Statute in July 2002. Moreover, he will only be able to look at alleged crimes that took place, either on the territory of a State Party or by a national of a State Party. In this sense, it explains why the Communication includes the United States and one alleged american perpetrator, to the extent that the crimes in the US could have been committed by nationals of State Parties and that the American Citizen might have committed crimes on the territory of State Parties.

• The scope of the situation

Second of all, the submission raises the question of the scope of the "situation" that would be the object of an investigation. Traditionally, situations have been expected to be limited in some way, especially from a territorial perspective. Up to now, this has been the case for all the situations looked into by the Court. The CCR submission, if it was followed would therefore be a first in the history of the Court, by defining a situation through a unity of crimes and alleged perpetrators exclusively, rather than through a territorial criteria. It should be pointed out that this is an implicit consequence of the reasoning of the CCR, because they don't actually explicitely deal with this issue. Three brief comments on this.
1) One should remember that the ICC Statute does not define what a situation is. Therefore, as I've discussed before in relation to the Libya Referral, any challenges to the scope of a situation faces this difficulty of having no statutory guidelines on which to base such a challenge. The case-law has suggested some limitations to the scope of a situation, but these are vague enough for anybody to argue that they could be extended to cover the events in the current submission.
2) It remains that there might be a difficulty with the submission when one considers not so much the concept of "situation" in general, but consider it in relation to the other ICC distinction, namely a "case". Indeed, I might not be able to define a situation, but what the CCR is describing in its communication certainly appears to me to be a "case": they identify a crime, the perpetrators and the mode of liabity. In this sense, the OTP, even should it accept a broader approach to a "situation", would be in violation of the Statute and the rights of the defense should it define the situation in the terms used by the CCR.
3) Which leaves the question open of how this situation would be phrased. One option would be to open a distinct investigation into each of the countries named by the CCR, but in practice, it would still require that it be shown that the crime is constituted based on a transnational policy.

• Is the alleged crime of "Crimes against Humanity" actually constituted? (and another rant on the confusion between HR and ICL...)

Which brings me to my third point : there is the major issue of whether Crimes against Humanity are indeed constituted. There is no doubt that the abuse in the catholic church has been widespread and systematic. Where the communication fails to convince, is on the organizational element required by the Elements of the Crimes in the following way:

"Attack directed against a civilian population"[...] is understood to mean a course of conduct [...] pursuant to or in furtherance of a State or organizational policy to commit such attack. [...] It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.

A footnote to this paragraph specifies that:

A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action

How does this apply to the current situation? For one, no one seems to be arguing that the Vatican set up an actual policy to perpetrate widespread and systematic abuse against persons in the care of priests. It is their "deliberate failure to take action" which is put forward. However, even if the conduct of Church authorities is subject to criticism, I think it falls short of showing that it was "consciously aimed at encouraging such attack". In this sense, when the communication says that the Vatican has been dealing with such situations in ways that ensured such violence would continue", I think it still does not establish intent, even by omission.

In relation to this, the reasoning of the CCR is even more confusing as regards the modes of liability put forward. Indeed, the CCR is clearly confusing the constitutive elements of the crime and the modes of liability. Let me explain. The CCR considers three possible modes of liability: superior responsibility (Article 28), contribution (25(3)(d)) and aiding and abetting (25(3)(c)). All these modes of liability have in common to be "subsidiary" to the main crime, which still has to be constituted. But the CCR does not do that. It would have to show that independently of the Vatican, its officials are claimed to "only" be the accomplice, the priests that committed the abuse acted under a plan or policy that they had set up, which, again, is not argued here. Indeed, without an established Vatican policy there is nothing that links the individual cases of abuse in a sufficiently organisational way to constitute a crime against humanity.

The consequence of this is that the Vatican officials are either responsible for "direct" commission under 25(3)(a), or not responsible at all. But they cannot be held complicit for a crime that is not constituted independently  of them. Which leaves us with one, arguably progressive, but at least coherent way of putting the case forward. It is the systematic cover up of this widespread abuse that constitutes the crime against humanity, not the abuse itself. This would mirror the development under human rights law of positive obligations, whereby if the State does not prevent the violation of a right under the ECHR, for example, by a third party, it is held responsible for the violation of that right. This reasoning would at least solve the issue of the modes of liability and the constitution of the crime.

However, and regular readers of this blog won't be surprised, I am not in favour of such an approach. This communication illustrates once again the slow (and apparently inevitable) blurring of the line between human rights and international criminal law. For me, widespread and systematic human rights violations do not necessarily constitute crimes under international law. These are related, but conceptually distinct domains that should remain distinct. In relation to this, it is unsurprising that the Communication relies heavily on the ICC Pre-Trial Chamber decision that authorized the opening of the investigation in the Kenya situation. I criticised it at the time, agreeing with the dissenting opinion of Judge Kaul, for broadening too much the scope of Crimes against Humanity. I expressed similar doubts in relation to the reference to Crimes against Humanity in the Libyan Arrest warrants. In a way, you can't blame the CCR for its communication. It's a direct consequence of all-encompassing conceptually blurred approach to crimes against humanity by the ICC judges themselves that is to blame. The conduct of the Church in past decades is certainly appalling, requires the utmost attention and should be dealt with accordingly, but, but I remain convinced that the ICC is not the right forum.

Hopefully, the Prosecutor and judges will not fall victim once again to the "boy scout mentality", which leads them to systematically want to save the world with two twigs and a piece of rope, even if someone else might have a far better set of tools...

UPDATE: Of course, another angle to approach this is from a PR perspective. It is clearly the ambition of the CCR to get media attention over the issue. This plays into the general trend of trying to get the ICC involved in every situation, to get some news coverage. Indeed, no situation seems to escape this trend (Palestine, Syria, Tunisia...). As discussed above, I disagree with this conceptually, but I have to admit that it is certainly effective. Thanks Joe for pointing this out.

Chutzpah at the ICTY: OTP motion to severe Mladic Indictment

I have been offline for a while now, too busy in the "real world" to blog on some of the issues that came up in recent months.

However, I couldn't really resist commenting on this piece of news: the ICTY Prosecutor filed a motion yesterday requesting a severance of the Mladic indictment to do two separate trials. This is the OTP's overview of its own motion:

1. The Prosecution seeks leave to: (a) sever the Second Amended Indictment (“Indictment”) against Ratko Mladic into two indictments (“Srebrenica” and “Sarajevo, Municipalities and Hostages”); (b) have the Srebrenica indictment tried first, followed by the Sarajevo, Municipalities and Hostages indictment [...]

2. The Prosecution has considered several options for proceeding against Mladic. Factors which have been taken into account include Mladic’s arrest at this late stage of the Tribunal’s mandate, the need to ensure justice for the victims, the desirability of commencing a trial as soon as possible, and the need to plan for the contingency that Mladic’s health could deteriorate. In the circumstances, severance of the Indictment and conducting two focused trials will best serve the interests of justice. 

3. Such an approach will maximise the prospect of justice for the victims, enable more effective management of the two separate trials and best allow the proceedings to be adapted in case of unforeseen contingencies. It is also consistent with the Rules of Procedure and Evidence (“Rules”) and will not unfairly prejudice the Accused’s rights.

Several brief thoughts :

1) On the substance of the indictments, the Prosecutor justifies the possibility of a severance by basically saying that there was no overarching Joint Criminal Entreprise (JCE) in Bosnia, contrary to what he had argued in the amended indictment of last June (§5):

Radovan KARADZIC and,  as of  12  May  1992,  Ratko  MLADIC,  were  key  members  of  an  overarching joint criminal  enterprise  which  lasted  from  at  least  October  1991  until  30 November  1995.  Their  objective  was  the  permanent  removal  of  Bosnian Muslims  and  Bosnian  Croats  from  Bosnian  Serb-claimed territory  in  BiH through crimes charged in this indictment.

The story now is that the JCE to eliminate the Bosnian Muslims in Srebrenica is unrelated (or in the words of the Prosecutor "not part of" and "not a foreseeable consequence of") to the JCE to permanently remove all Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory. This basically looks like confirmation from the prosecutor that Srebrenica was a one-off genocidal event... or is it? because there are also counts of genocide under the proposed Municipalities indictment. So if I understand correctly, there is genocidal intent in both cases, but they are unrelated... I find that a little confusing. As Professor Schabas was quoted saying in a recent Economist article: "either there was a general bid to exterminate or there was not" and severing the two seems extremely artificial.

2) I won't really comment on the practical justifications given by the prosecutor to hold two trials instead of one (interests of justice, interests of victims, manageability...). One can only wonder why, if these issues are so important, this has not been the practice in the past? I was under the impression that the ICTY was always acting in the interests of justice and of the victims, and that the efficient administration of justice was a permanent key consideration for the Court. But I must have been mistaken.

3) What puzzles me the most is the Procedure and timing of the motion. As the Prosecutor's immediate recourse to "inherent powers doctrine" shows (§21 of the motion), there is no actual textual basis for the severance in the founding documents. I generally don't like the use of this shaky doctrine by international criminal tribunals, but let's play along for the sake of argument.
The real issue is timing. I find that this motion shows the  chutzpah of the Prosecutor, and ultimately of the ICTY, should the severance be accepted. Indeed, let's look at the timeline for a second. The first indictment against Mladic was filed some 15 years ago.The Prosecutor, filed an revised indictment in May 2010, which was only approved nearly a year on in May 2011, so that gave him time to reconsider his approach. More importantly, Mladic was rushed through the initial appearance (with the playing-to-the-media-i'm-reading-ALL-the-charges show from Judge Orie)  and the ridiculously hasty pleading proceedings (with the removal of Mladic from the courtroom at his own request), his request for additional time to read and understand the charges having been denied. Everything was rushed along, probably in the "interests of justice". And now, the Prosecutor suddenly decides to change his mind and hold 2 trials, because of these same "interests of justice"? Whatever the practical merits of that solution, I find the Prosecutor's conduct quite careless, especially in light of the ICTY's attitude towards Mladic, which seems to indicate that a Court having conducted dozens of trials is suddenly having first date jitters when it comes to this defendant.

4) On a final and related note, I'm still in favour, at least in theory, of joining the Karadzic and Mladic trials, especially if Srebrenica is tried separately. On top, from what I understood, the Karadzic Chamber has not even started hearing evidence on Srebrenica (someone correct me if I'm wrong). As I've said elsewhere, these this is essentially the same case, from a narrative point of view. If the "interests of justice" are so important, then I believe both cases should indeed be joined.

Khaddafi Arrest Warrant: Some Thoughts on the arrest "obligations" and Crimes against humanity as the new "crime of crimes"

In my last post, I considered one of the political aspects of the indictment against Khaddafi in relation to the Peace vs. Justice debate.

Today, some quick thoughts on the legal dimension of the request for arrest warrants. The situation in Libya indeed raises a number of interesting issues which I am particularly fond of. I won't delve  into the question of the actual legality of security council referrals. I've said in the past that I was skeptical about the mechanism as a whole, because i don't believe the SC has the power to bind a state not party to a treaty to that treaty, and more particularly discussed the legality of Resolution 1973 here (don't forget to read the comments section, it raises some quite interesting ideas on the extent of Security Council powers. 

I also will not insist on the issue of head of state immunity that is raised here, for the second time at the ICC after the Bashir case. Dapo Akande, over at EJIL Talk! argues that because SC resolution binds Libya to the Statute of the ICC, it must abide by article 27 which removes immunity. Needless to say, given my previous remarks, that I disagree with this analysis. At best, SC 1973 obliges Libya to cooperate with the Court, but within the limits of its international rights and is not bound by the actual content of the Statute.

• Third State obligations in relation to arrest warrants

One notable point that comes up in relation to the request for the arrest warrants is what they would, if granted, require of other states. As I have argued before, I don't believe that the issuance of an arrest warrant automatically creates an obligation for state parties to the ICC to arrest the person in the absence of a specific request under 89(1). Moreover, I have also argued that the general requests to all states under 89(1), irrespective of actual knowledge of the presence of the accused on the state's territory, seemed contrary to the drafting of that article. This argument seemed to me like a shot in the dark, given the practice of the court in wholesale notifications... But apparently the ICC Prosecutor agrees with me (which also means that for once, I agree with the ICC Prosecutor...)! Indeed, in the request for arrest warrants, the Prosecutor points out in the request that : 

65. The Office submits that, if this Application is granted and the Court proceeds to issue warrants of arrest, the Court should exclusively transmit a request for the arrest of the suspects to Libyan authorities.
66. This would conform with the requirements of Article 89(1) which provides “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person”. Addressing a request at this stage to other States on whose territory, according to the information available, the suspects are not physically present would appear superfluous and contrary to the express scheme foreseen in Part 9. 

Dapo Akande finds this position strange, because it suggests that the approach adopted in the Bashir case was contrary to the statute. But I think that the Prosecutor is perfectly right in his reading of article 89(1) and that indeed, the previous practice of the court was contrary to the statute. Apparently, someone at the OTP is reading this blog and some credit would have been nice...

• Crimes against Humanity as the new crime of choice?

A second notable point is the crimes for which the warrants are sought. The "Tripoli Three", as Mark Kersten has aptly named them, would be charged, according to the request, for two counts of crimes against humanity. This raises a number of questions. The first one relates to the question of whether counts of war crimes could also have been possible (see Dapo Akande's discussion of whether there was in fact an armed conflict in Libya at the relevant times for the acts under consideration). 

More generally, I think it shows a recent trend towards crimes against humanity becoming the new ideal crime of international justice. Indeed, it seemed that crimes against humanity had lost their appeal, more particularly in relation to genocide, as the debate surrounding the Bashir arrest warrant showed. But now, it is back in fashion, especially in the new context of wanting the ICC to deal with the "arab spring" and more generally with situations of internal crack down of political opposition. 

Indeed, Crimes against humanity have the benefit of not needing the special intent of genocide (and generally being more adequate for criminal law than genocide, as I've argued elsewhere). Moreover, they don't require an armed conflict, which are usually hard to identify in the situations of popular uprising that we are witnessing now. 

Of course, there still remains the question of establishing the widespread and systematic nature of the attacks (with the corresponding knowledge), as required by article 7(1) of the Statute. But even this is turning out to be not so much of a problem if the threshold is lowered, as was the case in the Kenya situation, thus allowing for systematic human rights violations to be "caught" under the umbrella of crimes against humanity. I had strong doubts about the Pre-Trial Chamber's approach back then, and still do, but if the trend is confirmed, then Crimes against Humanity have found a new youth and may even becoming the new "crime of crimes".

Khaddafi Arrest Warrant: Some Thoughts on Peace Vs Justice (non)-debate

Last week, the Prosecutor of the ICC announced that he was requesting arrest warrants again Khaddafi, his son and the director of military intelligence for crimes against humanity. The request has already been commented on on numerous blogs. Mark Kersten has produced an impressive number of posts over at Justice in Conflict. You can also read Dapo Akande's post on EJIL Talk! and David Bosco at the Multilateralist.

This situation raises a number of issues that could fill entire books. In this post and the next, I will propose a quick series of comments on some of them.

Today, a few thoughts on the discussed political impact of the indictments.

Indeed, on the more political end of the debate, the issue has been raised on the effect of the indictments on Khaddafi, and whether this will really contribute to peace, or on the contrary push the regime into a corner from which it will be harder to dislodge it. In other words, it's the traditional Peace Vs. Justice debate. I've always followed that debate with some puzzlement, because i'm not actually sure it's capable of a solution, both methodologically and normatively.

Methodologically, how does one evaluate the two in order to measure failure or success of a given policy? Usually, beyond the entrenched positions on both sides ("no peace without justice" on the one hand, and "no justice before peace" on the other), it's difficult to identify solid criteria that allow for a clear analysis. The two main obstacles, for me are the perspective adopted and the timeline.
As regards the perspective, it depends who is looking at the situation. For the immediate victims of mass atrocities, the answer might not be the same as for the bystander civilians who suffer from the conflict. While for a portion of the population, the simple end of hostilities is all they want, the victims and their relatives will want justice. How do we quantify these competing expectations?
As regards the timeline, what period of time do we look at to say that a solution worked? 6 months? 2 years? centuries? Today, policymakers tend to see things in extremely short term. We expect western democracy to work in countries that have never known it in a matter of years. The same goes with the oft-referred to, but elusive concept of "reconciliation". I'm not sure we have the tools to know immediately the effect of a given policy. In fact, this debate always reminds me of the answer apparently given by a Chinese official when asked in the 70s about the impact of the French Revolution: "it's too soon to tell".

Normatively, even if you could identify in hindsight what worked, it doesn't mean that you can draw conclusions for what might work in the next case. A typical example is amnesties. You can say that blanket amnesties sometimes allowed for a reasonably peaceful political transition, which gave way a few years later to prosecutions (e.g, Argentina). But this cannot be a model for future policy, because if you say from the start that the blanket amnesty will be repealed 10 years later, it kind of defeats the purpose of the amnesty in the first place.

More generally, linked to my previous point on the temporal dimension, if one reasons over centuries rather than decades, history shows that in fact all modern States were built on massacres without justice, and in most cases, there aren't any obvious problem today (you don't see the Italians holding a grudge against the Germans for the sack of Rome or the French holding grudges against Italians for the defeat in the Gallic Wars). Does that mean that this could be a model for today? Probably not, because the bottom line, is that at some point societies make moral choices, irrespective of utilitarian considerations.

Which brings me to my last point. The objective here is not to pass judgment on whether the moral choices made are sound or not. What is interesting is that, methodologically, the two "sides" of the debate are often not really talking the same language, so will never reach a compromise. In a way, and totally unoriginally, they are just continuing the age-old moral philosophy debate between utilitarians, who evaluate the goodness of an act through its consequences, and the proponents of deontological ethics, who look at the intrinsic goodness of an act (in a nutshell of course, there are other nuances to these two trends). It is certainly a fascinating debate, but unlikely to have a solution from an intellectual point of view, even if it seems that the "deontologists" have the upper-hand today.

In conclusion, because we have chosen a certain moral approach to justice today (which is still variable depending on the situation, as the debate on the death of Bin Laden showed), which implies accountability for certain acts, such as crimes against humanity, to put it bluntly, the issue of peace is irrelevant in that framework. It might not be the right choice, but even if they might be occasionally compatible in practice, we have to stop trying to pretend that we can reconcile the two conceptually.

The ICTY prepares for Mladic

As the procedure for Mladic's extradition continues in Serbia and questions of his fitness for trial arise, the ICTY awaits his arrival eagerly.

First of all, the judges for the Trial Chamber have been assigned. Among them is Dutch Judge Alphonse Orie, which is interesting, given the Netherlands' ambiguous role in Srebrenica. It is also ironic that a Dutch judge will be a part of accountability for what happened there, given that the a Dutch court decided in 2008 that the Netherlands were not responsible for what happened because they were under UN command, and that the UN itself could not be sued before a national court because of its immunity, thus removing all means of reparations for victims.

Second of all, the Court granted the Prosecutor's request to amend the Mladic indictment, which he had filed... over a year ago! One could of course cynically think that the imminent arrival of Mladic explains the sudden interest for a request which has likely been buried in the "to do" box for a year... But the professionalism that defines the work of the ICTY should guard us from such cynicism and the delay probably only means that the judge has been extremely thorough in reviewing the request and its accompanying documents.

Third of all, as predicted in my previous post, Karadzic's counsel has raised the issue of the effect of Mladic's arrest on the Karadzic trial, and the question of whether a suspension and joinder might be an option.

BREAKING NEWS: Mladic apparently arrested!

The press is announcing that war crimes suspect Radko Mladic has been arrested in Serbia. The president of Serbia has confirmed this information in a press conference. He claims that this "closes a chapter" in the history of Serbia and its cooperation with the ICTY (although he did mention that Hadzic is still out there). I think this is wishful thinking. Because 1) the turbulent history of the Balkans and Serbia's role in it will not just disappear with Mladic's rendition to the ICTY. There will be a long trial which will delay any closure for many years. and 2) is sending Mladic for trial in The Hague really the way to deal with the past? I know that the ICTY has primacy over the case, but if I were Serbia, I would actually fight that and request to try him, under international supervision, in Serbia. The trial would definitely have more meaning in my opinion.

It will also interesting to hear the world leaders praise the arrest and the fact that Maldic will be brought to justice... just weeks after they praised the killing of Bin Laden as "justice being done"...

Finally, it will of course be important to see the effect of the arrest on ongoing cases at the ICTY. Let's see Mladic, for example, prove that he is not the author of the diaries that were entered into evidence in a number of cases. Also, if I were Karadzic's counsel, I would request a suspension of his trial and a joinder of cases, given the JCE that is claimed against both of them. That would create quite a procedural mess...

Follow-up post on Amnesties in Uruguay: when popular sovereignty defies human rights actvitists

I'll be posting in Libya in the coming days, but for now a short follow up on the Amnesty law in Uruguay

A while back, I posted on the Uruguay amnesty law which has been universally condemned by rights groups and, at the time, found unconstitutional. In March, the Inter-American Court of Human Rights apparently condemned the law as well and in April, the Uruguay senate voted to overturn the law.

Well, last week, a vote in the House of Representatives to repeal the law failed. Apparently, there is some support for that law in the country, which, as I mentioned in my initial post, was approved twice by referendum.
Whatever one thinks of the law itself, there is clearly a clash of logics here. On the one hand, the universalist approach to human rights and on the other, the question of popular sovereignty. Indeed, this law is clearly not being imposed from the top by a dictatorial regime. It is, as far as I can tell, a reasonably functioning democracy. This certainly raises the question of the limits of outside intervention when a population chooses a certain path for itself and I find it disturbing that, in an era where "local ownership" is the new catchphrase, human rights activists are so adamantly trying to force a certain mechanism on a country which so clearly does not want it.

International Law Reporter is back!

I have been frustratingly unable to blog in recent weeks, despite some nice topics to cover (most notably at the ICC). I hope I can rejoin the world of blogging soon, when the workload relents...

In the meantime, a short announcement. The International Law Reporter, a invaluable source of information on recent publications for many years, had announced that it was shutting down last February. Apparently, Jacob Katz, probably by popular demand, has changed his mind, and the blog has resumed work this week.

Let's hope it lasts!

new Article on Kosovo Advisory Opinion: searching for the responsibility of the UN and Kosovo

Regular readers of this blog will know that I was critical of the ICJ's advisory opinion as soon as it was released last July. I criticized it in a live blogging session from the ICJ on the day it was issued, and in subsequent posts, both here and on the Hague Justice Portal.

In an article just published in the Leiden Journal of International Law by myself and Yannick Radi, we explore more systematically and systemically the flaws of the opinion, considering that most of the difficulties that arise stem from the fact that the ICJ accepted to answer a question relating to non-State entities, i.e, the authors of the declaration of independence, rather than its core ratione personae jurisdiction, that are States and the UN.

You can follow the full extent of our reasoning in the article, and, for those who have a little less patience, the summary that we published on EJIL Talk!.

For those who have even less patience, one of the core arguments we make is that the acts of the Kosovo assembly, as established under the authority of the UNSC, can be attributed under international law to the UN, thus raising the rather interesting question of whether the UN can unilaterally declare the independence of a State. Pushing the logic even further, we argue that the ICJ implicitly recognises a new legal entity, Kosovo, to which the declaration could be alternatively attributed. I won't elaborate here, and let you read the article to see how we pulled this one off!

The Astonishing Defense of Bin Laden's Death by the Security Council

Cross-posted on the Invisible College

I won't retrace and repeat the numerous online discussions on the general question of the legality of Bin Laden's killing. You can find some thoughts on various blogs, such as EJIL Talk!, over at Lawfare,  Opinio Juris and Justice in Conflict.

One issue which has not been put forward in what I've read is whether UN Security Council Resolutions could be a basis for the legality of the killing. Indeed, discussing the issue with a colleague this afternoon, we wondered whether some UNSC Res, adopted under Chapter VII could be used to justify the killing. It might seem a little far fetched, because, although Res. 1368 implicitly approved the use of force as part of the right to self-defense after the 9/11 attacks, all Resolutions I've seen in relation to Bin Laden or Al Qaeda take measures to freeze assets and call for combating terrorism, but don't explicitly allow the killing of an individual. But it is true that these Resolutions do clearly recognize the organisation and its leader as threats to peace and security and could be loosely interpreted as allowing to take these measures to stop this threat. But all in all, I didn't believe that this argument was really valid and that the SC had ever had the intention to authorize such actions...

...And then tonight, I saw this astonishing statement from the President of the Security Council, made on behalf of the Council. Here are some notable excerpts from the statement:

“In this regard, the Security Council welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism, and reaffirms that terrorism cannot and should not be associated with any religion, nationality, civilization or group.
...
“The Security Council further reaffirms its call on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of terrorist attacks and its determination that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable."
...
“The Security Council reaffirms that Member States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law."

So, reading these paragraphs together in plain English, and if I'm not mistaken, 1) the Security Council approves the death of Bin Laden 2) considers that his death fits the definition of "bringing someone to justice" and "holding him accountable" and 3) considers that his death complies with international law.

Let's put aside the questionable fact that the SC would explicitly approve the death of an individual, even Ben Laden, and the question of the conformity with International Law, which is nonetheless interesting coming from the main executive organ of the United Nations. What strikes me is proposal number 2. How can a body, which has repeatedly called for the promotion of international criminal justice, and the values of the rule of law and due process that underly it, seriously make such a statement? If that is the definition of accountability, surely we can free some office space in The Hague and just close down the ICC, the ICTY, the Special Court for Sierra Leone and the Special Tribunal for Lebanon. All we need is a naked wall, a blindfold and a firing squad. While we're at it, we might as well abolish our national criminal law systems. To be clear, I'm not saying that Ben Laden should not have been killed. I'm well aware of the realities of politics. I'm just denouncing the hypocrisy of defending values and then approving actions that run counter to them in the same breath. If you believe in the rule of law and due process, then you cannot approve the killing of Ben Laden, however politically or logistically justified it may be.

SHARES Project Conference Announcement and Call for Papers - 15 May Deadline

The SHARES Project is organizing a major conference next November on the Foundations of Shared Responsibility in International Law.

Here is the Call for Papers - The Deadline is the 15 May 2011.

Self-promotion: launch of Shared Responsibility in International Law Website

Since September, I have been involved in a new project at the University of Amsterdam which addresses issues of Shared Responsibility in International Law. The project has just launched its new website. Here is the annoucement:

The Research Project on Shared Responsibility in International Law (SHARES) is pleased to announce the official launch of the SHARES website: www.sharesproject.nl. The website includes a detailed description of the SHARES project and its project members. The website also features news, events, publications, blog posts and resources on shared responsibility in international law.
 The ambition of the SHARES project is to examine an unexplored and largely unrecognized problem: the allocation of international responsibilities among multiple states and other actors. It seeks to uncover the nature and extent of the problem of sharing responsibility in an increasingly interdependent and heterogeneous international legal order. SHARES will therefore offer new concepts, principles and perspectives for understanding how the international legal order may deal with shared responsibilities. The project will address general issues of Responsibility in International law, of States, as well as other entities, such as International Organizations, individuals and other non-State actors, which will impact various fields of law, such as refugee law, environemental law, human rights law or the laws of armed conflict. The SHARES project is a research project of the Amsterdam Center for International Law, led by Professor André Nollkaemper, and funded by the European Research Council.

All to Blame in Ivory Coast? Shared Responsibility for International Crimes

Cross-posted on SHARESprojectBlog

[more about the SHARES project here]

Ivory Coast is becoming a political nightmare. Indeed, with the evidence of crimes being committed by Gbagbo forces, as well as by Ouattara's supporters, the international community is faced with a dilemna: if it turns out that Ouattara is indeed condoning such actions, how can he be supported by the world community, if it is to be consistent with calls for removal of other leaders who have alledgedly been involved in such situations, such as Khadafi in Libya? The result of such consistency would however be a political vaccum that might create more chaos in the country.

Beyond this political dimension, the situation raises interesting issues of Shared Responsibility. Berenice Boutin, from the University of Amsterdam, has considered the Shared Responsibility of France and the UN in Ivory Coast. One issue that needs to be considered in addition to that is the question of the responsibility for the crimes being committed on the ground, by both sides, which is even more complex.

Indeed, this is a case of Shared Responsibility which involves several types of entities, several levels of responsibility and types of obligations from various areas of law.

The first level is obviously the individual responsibility of those committing the crimes, which would arguably fall under several categories of International Criminal Law (ICL), whether under the war crimes of the crimes against humanity label. Still within ICL is the command responsibility of the military, but also civil, leaders. 

The second level requires looking at the entities to whom those crimes can be attributed. Interestingly, because Ouattara has been recognised by the entire international community as the legitimate representative of Ivory Coast, you can argue that the State Responsibility of Ivory Coast could be invoked. Also, and to make things even more interesting, it appears that mercenaries from other countries, more particularly Liberia, are involved. Depending on the facts, this could give rise to either direct responsibility of Liberia, should it be wilfully supporting the mercenaries, or, alternatively, failure to exercise due diligence, at least over its own territory and borders, if it could have prevented such a situation.

The third level is that of the responsibility of external entities, more particularly France and the UN, not only for their actions as considered by Bérénice, but also for actions by the parties to the conflict. The first angle that one could adopt, is their failure to exercise its responsibility to protect, as an emerging, but strongly debated and contested, norm of international law. Should the actions fall under genocide (there is some evidence that specific tribes are being targetted), it could trigger the specific duty to prevent that was recognised (if haphazardly applied) by the ICJ in the Genocide Case (PDF) in relation to Serbia. 
The second possible angle is complicity. Indeed, this might seem a little far fetched, but to the extent that the international community has been positively supporting Ouattara, not only politically, but also militarily, by targetting exclusively Gbagbo forces, couldn't it be seen as an active participant in the conflict (I have argued elsewhere against the fiction of neutral external intervention), and therefore be help responsible if the party it supports commits crimes that were foreseeable? this certainly raises issues of knowledge and intent which, under their current definition in international might not cover such situations, but the question can at least be asked.

New Controversial Laws in Israel: Some Thoughts

The Knesset, Israel's Parliament has recently approved a series of apparently controversial laws which has provoked some strong opposition. The first one allows small communities in the Negev and Gallilee to refuse a resident permit to people who are "ill-suited to the community's way of life" or "might harm the community's fabric". The second law, which is being called the "Nakba law", would allow the State to fine state-funded institutions who commemorate the "Nakba" (literally "catastrophe"), the Palestinian day that coincides with Israel's independence day and  commemorates the loss of their land. The third law would allow courts to revoke someone's citizenship for certain acts, such as terrorism, treason or collaboration with the enemy in time of war, or "any other act which harms national sovereignty".

There is no denying that the general political context of the adoption of these laws is less that optimal. The right wing coalition of Netanyahu and Lieberman is playing into the population's xenophobic and security fears and has been bad news for peace in the middle east since it was elected to power last year. In this context, it is a delicate intellectual exercise to coldly consider the actual content of these laws and try to analyse them in a decontextualised way, but I still want to share some thoughts on two of them, the nationality law and the Nakba law.

In relation to the nationality law, it was strongly denounced and declared to be "racist", because aimed at the country's Arab minority. However, in the absence of actual practice of the law, and I insist, independently of the intent of the majority which passed the law, I find this conclusion a bit hasty. For one, if this law is controversial, then it should be controversial in many countries, not just Israel. Indeed, many States have such provisions in their national legislation for such crimes. One could question whether such type of law should exist at all, on the basis that all nationals should be treated the same way, independently of their "origins" (which I would argue), but it is not a specific Israeli debate. Second of all, on the scope of the law, it only "discriminates" against persons having committed a specific crime. But that is how criminal law works. Saying otherwise would be absurd. It would be like saying that the law providing for 30 years in prison for a murderer is discriminatory against murderers... More specifically, saying that the law is "racist", implies that the law considers that all Arabs are terrorists and traitors. That might be what Lieberman thinks, but that is not what the law says. Therefore, if you accept the principle of that law (which I wouldn't), its current formulation would seem unproblematic to me.
I would however have one reservation that would need to be verified, because none of the news reports I've read give any indication: that of the situation of persons with a single nationality. Indeed, the French law, for example, provides that you cannot revoke the nationality of someone if it would result in them being stateless. This is in application of the international law rules in that respect, more particularly the Convention on the reduction of Statelessness of 1961. Israel has not ratified the Convention, but there could be some argument that its provisions form part of customary law. In this sense, it would be particularly problematic if the law did not provide for an exception in such cases.

In relation of the Nakba law, I must admit that I am of two minds. But first, three points on the law itself.
For one, it is unclear from what I've read what the law says exactly. According to wikipedia (I'm sorry for the source, but because I don't read hebrew, I'm limited to secondary sources which would need to be verified), the law doesn't actually mentions the Nakba. It allows for the witholding of:

government funding from Arab towns and state-funded organizations or public institutes that participate in "activity that involves the negation of the existence of the State of Israel as the state of the Jewish people; the negation of the state's democratic character, support for armed struggle or terror acts by an enemy or a terror organization against the State of Israel; incitement to racism, violence and terror and dishonoring the national flag or the national symbol"

Even if it does, and second of all, it is unclear what the "Nakba" specifically commemorates. According to Human Rights Watch, it refers:

 to the historic episode in which hundreds of thousands of Palestinian residents of what is now Israel fled and hundreds of villages were destroyed during the conflict after Israel declared independence in 1948

However, according to other sources, its full name is "Yawm an-Nakba", the  "day of the catastrophe", and is commemorated on the same day as Israel's independence day, in reaction to the specific creation of the State of Israel.

Third of all, the law does not prohibit all commemorations of the Nakba, it prohibits such commemorations by publicly-funded institutions. While the definition is wide-ranging, it is still limited.

With this in mind, a few thoughts. On principle, my natural instinct is in favor of absolute freedom of expression. I argued along those lines in one of my very first posts. I strongly oppose the trend towards the criminalization of free expression, even if it's offensive, and I am, for example, strongly opposed to laws criminalizing holocaust denial.

But this is where, to come back to the very first point I made, I reach the limits of "decontextualising" the analysis of the law. In a "pacified" society, I can argue that freedom of expression should always prevail, and that everybody should be allowed to express their opinion, even if that opinion mourns the actual creation of the State where he lives. Discussion of the past should be free and unimpeded.
However, Israel is not a pacified society, on either side. Israel still feels threatened in its existence, whether this is in fact a real danger being irrelevant. Palestinians rightly feel that they have been robbed of their nationhood and have suffered 60 years of Israeli occupation, and half-hearted support from neighboring Arab States. The Nakba is not the past, it is the present and its celebration has very actual meaning in the current political context . As the debates on transitional justice, truth, reconciliation and peace have shown in the past decades, there is no simple answer, as some organisations would let have believe, as to how to deal with situations where the social fabric is so torn. Given the fragile balance (or imbalance), I would not have the arrogance to try and impose a theoretically perfect solution (freedom of expression) on Israel. The only option is compromise and some measure of balance.
In this context, I don't find it that scandalous that a State would frown upon public institutions (I would adopt a more limited definition to cover only State institutions) promoting the commemoration of a day that basically mourns the formal creation of that State. I would not imagine a play in a publicly-funded French school celebrating Petain, and mourning his defeat in 1945 (just to be clear, I take this as an example of an ontological fracture in the nature of the French State, not as a comparison between Petain and the Palestinians). On the other hand, with a broader definition of what the Nakba represents, Israel should try to face its past and acknowledge that its creation, while not being put in doubt, came with serious human rights abuses that still leave open wounds today. This would however require clarity that the celebration of the Nakba does not imply that Israel should not exist as a State today, which is politically and understandably difficult to accept for Israel.

If anybody has any corrections to make on the actual content of the laws, I'd be happy to make the appropriate changes. I look forward to your comments on this complex topic. Those who would be tempted to simplistically put me in the "pro-palestinian" or "pro-israeli" box, based on one or other sentence in my post (biased people generally tend to have a surprisingly accurate capacity for selective reading) are also invited to share their thoughts for comic relief.

self-promotion

As you might have gathered from the shiny new box on the left, I have joined the twitter community. You can follow me on @dovjacobs, for updates on the blog, current issues of international law and comments on various topics.

Garzon goes to the ECHR...

... as a plaintiff, not as a judge. According to this press release from Interights, Balthazar Garzon has filed a complaint before the European Court of Human Rights challenging his prosecution in Spain for having opened an investigation in 2006 into events having taken place during the Franco era, despite the existence of an amnesty law.

Readers of this blog (here, here and here) will know that I did not join Garzon's fan club when these events unfolded last spring. I was puzzled at how little consideration was given to the Spanish legal system, and ultimately, I believe that Garzon has ambitions that far exceed the constraints of his function in Spain and should consider a career in an international court, such as the ICC.

So what is the basis for this complaint. Here is a relevant portion from the press release:

Judge Garzón’s case represents a threat to the independence of judges and to their role in ensuring accountability for alleged widespread and systematic crimes. In his case Judge Garzón alleges that the criminal case against him in Spain violates several of that country’s obligations under the European Convention on Human Rights. These include the obligation to protect judicial independence generally, including protecting judges from unfounded criminal prosecutions as exemplified by this case. Specifically, the prosecution of Judge Garzón violates the duty not to subject individuals to an inherently unfair criminal process, to only prosecute on the basis of clear criminal law, strictly applied, to respect private life and professional development and the right of judges to reasoned judicial decisions in the exercise of judicial functions.

Just a few brief comments.

First of all, I'm not even sure the case is admissible. Indeed, "the Court may only deal with the
matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken" (Article 35, EConvHR). His case has not started, and therefore Garzon has not exhausted all local remedies, especially given the fact that there is no certainty that he will indeed be found guilty. Of course, Garzon could claim undue delay in the prosecution itself, given that after a year, the trial has not started, but that is not what Interights seems to be arguing.

Second of all, there seems to be a confusion about what the ECHR does. Of course, its ultimate ambition and goal is to promote the rule of law, which does include an independent judiciary, but it is not an institutional supervision body, it does so through the violation of specific human rights of specific individuals. It is NOT an institutional rule of law supervision body. And more importantly, Human Rights Law was always primaril (although arguably that is changing) aimed at protecting individuals against the State, not the State against the State.
How does this apply to the present case? Well, the "obligation to protect judicial independence" is not specific enough to warrant a complaint. What is exactly the right being violated in the particular instance? The Press Release is ambiguous on that, but seems to be claiming the general interest of ensuring accountability for human rights violations. If that is the case, then I believe Garzon doesn't have standing before the ECHR, as he is not directly affected in that respect. It would be for the victims of the crimes to claim that they have not received an effective remedy due to the amnesty law and the decision not to pursue the investigation, which, as far I can tell, they haven't done (ironically, I did find a case where plaintiffs complained before the court that they had not benefited from the amnesty law, without raising an eyebrow among the judges...). In relation to this, I'm wondering if this complaint is not only unfounded legally on this point, but also disingenuous in its presentation. Indeed, according to Interight:

 The potential chilling effect on other judges when they come to determine legally or politically controversial cases is obvious, and a serious threat to judicial independence and the rule of law.

But that would only be true if the current prosecution was actually the cause for the interruption of the investigation. However, it was not! Indeed, it appears that in 2008, Garzon went to a confirming judge with his opinion about the amnesty law, who told him that he should discontinue the investigation, which he did. So the threat of prosecution is irrelevant to the fact that he followed orders in 2008. (Incidentally, that makes me agree with one point of the complaint: Garzon seems to have followed the rules. Whatever his opinion of the amnesty law and its applicability, he stopped the investigation when told to do so. That seems to be the normal functioning of a legal system, and I'm not quite sure why he should be prosecuted now)

Third of all, and as an aside, I find quite ironic the claim that a prosecution should be on the basis of "clear criminal law", when human rights activists are usually quite happy to have individuals prosecuted for international crimes that are sometimes ill-defined in elusive customary law, where defendants are expected to know that there is enough state practice (i.e, that he's taken the time to read the criminal codes of a number of foreign countries) for a particular provision of an international convention has attained the status of custom (see Kononov at the ECHR for an example of that).

All in all, this complaint once again illustrates the style of Judge Garzon, who just cannot prevent himself from showing his grand ambitions in terms of human rights policy, irrespective of the specific legal setting he might be operating in. His current ECHR stint is at best premature, and at worst frivolous, whatever one thinks of the Spanish Amnesty law.

Follow-up on French Karadzic Decision

In support of my argumentation on the role of the interaction between French civil courts and the ICTY, and the suggested idea that French civil courts should suspend their decision under a verdict is achieved, I have come across rule 106 of the ICTY RPE on the compensation for victims:

(A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty  of a crime which has caused injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.

This Rule, particularly paragraph (C) supports the claim that there is a functional link between the ICTY and national courts, not merely a factual one. One could of course wonder whether the judges in the RPE, in the absence of any explicit statutory provision on compensation for victims, or the effect of ICTY judgments in national legal orders, can actually be deemed to have adopted this rule ultra vires. However, the Rule indirectly finds support in the non bis in idem provision of the Statute (article 10), which provides that

No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 

One can therefore argue, as I did in my previous post, that, to the extent that ICTY judgments are deemed to have a clear legal effect in national systems, i.e, be just as binding as a national criminal judgment would be, ongoing international criminal proceedings can have the corresponding same effect than national criminal proceedings, i.e. suspend civil proceedings until the conclusion of the trial, especially given the impossibility of concurrent French criminal proceedings.

This certainly raises interesting questions on the interactions between legal orders, the international and the national one, and more importantly the porosity between the two. Any comments are as usual welcome.

[UPDATE: One member of Karadzic's legal team has reacted (unsurprisingly) to reject the French decision. He considers that the decision is "illegal" because, just to cover all angles, 1) there is no guilty verdict by the ICTY, 2) anyway there is no link between what he is tried for and what  the facts considered by the French Court and 3) that the Court has no jurisdiction to decide whether a defendant is guilty of war crimes. I hope he is more efficient in his defense of Karadzic because his reasoning is notably unconvincing. Indeed, if there is no link between what the Paris court ruled upon and the charges at the ICTY, then there is actually no obstacle for the French Court to independently rule on the facts before it. Moreover, there is a double inaccuracy in his third point: a) of course a French Court has material competence over war crimes, from its own criminal code, especially as there is a clear personal link with the nationality of the victims and b) in any case, it is a civil decision, so technically Karadzic was not found guilty of war crimes.
In any case, the question of the link between the two procedures is interesting. Indeed, my reasoning is based in the assumption that there is such a link between the harm the plaintiffs claimed in France and ICTY charges. This assumption is based on the apparently explicit referral to ICTY proceedings by the French tribunal. But if in fact, there is no link, then my argument, of course does not hold. I'm still trying to get hold of the decision to verify this.]