Spreading The Jam

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

2011-12-23T01:24:00.003+01:00

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?

2011-12-21T18:49:00.005+01:00

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

2011-12-15T01:45:00.001+01:00

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

2011-09-15T16:57:00.002+02:00

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

2011-08-17T12:43:00.000+02:00

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"

2011-06-02T00:29:00.000+02:00

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

2011-05-31T10:54:00.001+02:00

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

2011-05-29T03:36:00.000+02:00

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!

2011-05-26T13:41:00.000+02:00

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

2011-05-24T00:27:00.000+02:00

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!

2011-05-23T18:32:00.000+02:00

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

2011-05-13T19:06:00.000+02:00

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

2011-05-04T01:35:00.002+02:00

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

2011-04-21T16:36:00.000+02:00

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

2011-04-11T16:15:00.000+02:00

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

2011-04-11T15:49:00.005+02:00

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

2011-04-01T21:20:00.001+02:00

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

2011-03-27T19:07:00.000+02:00

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...

2011-03-26T01:13:00.002+01:00

... 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

2011-03-16T18:05:00.002+01:00

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.]

French civil Court orders Karadzic to compensate Bosnian Family

2011-03-14T23:20:00.001+01:00

According to an AFP report, the Tribunal de Grande Instance of Paris has ordered Radovan Karadzic and Biljana Plavsic to pay 200 thousand euro in compensation to a Bosnian family living in France since the war. The Court found itself incompetent to consider the case against Krajisnic (the report does not say why) and requested additional information against Mladic.

In relation to Plavsic, the Court apparently relied on her conviction for crimes against humanity by the ICTY to find that she had committed faults in relation to the plaintiffs' damage. One should recall that at the time, that case had created quite a stir because she had plea bargained her way to getting the genocide charges dropped.

As for Karadzic, whose trial is still ongoing, the Court found that (rough translation from the AFP report): "the simple fact that no definitive conviction has been reached cannot justify the status quo, which would necessarily create unjustified additional delays for the victims. The judges referred to the right of a victim of manifest human rights violations to an adequate, useful and swift recourse".

I'll be careful of drawing too many conclusions from a news report (journalists are not necessarily known for their adequate reporting of legal news), but just a few thoughts.

First of all, I'm not aware of any such decisions before, of a civil claim against a current ICTY indictee (if my readers have any information on this...).

[UPDATE: Apparently Karadzic was also the object of civil proceedings in the United States in 2000, while still a fugitive and ordered by a jury to pay compensation. The article raises the question of whether the Republika Srpska could be held liable to pay the reparations, given that Karadzic himself most likely does not have sufficient funds. Also, French courts are definitely less favourable to plaintiffs: the 200.000 euro awarded in Paris seems like chump change compared to the 4,7 billion dollars awarded in the US...]

Second of all, I'm a little puzzled by the procedure. The Court's affirmation that the absence of a criminal conviction is no reason not to go forward is in that respect interesting. For one, from the point of view of French law, there is, if I recall correctly a principle that "le pénal tient le civil en état", which translates roughly as "criminal proceedings hold civil proceedings still". This basically means that when both criminal proceedings and civil proceedings are ongoing, the civil court must wait for the criminal court to decide. Of course, there are not formal criminal proceedings going on in France, so you could say that the rule does not apply. However, the primacy of the ICTY over national jurisdictions actually bars any criminal proceedings for the same crimes in France, so in a way, Karadzic, being tried under a Chapter VII mandate by the ICTY in tried in the name of France. It seems like a convenient way to skirt around the primacy rule, to initiate civil proceedings when criminal ones are not possible.

Finally, I'm struck by the finding of the Court that "manifest" human rights violations require a particularly swift remedy. I was unaware that "human rights" had a different role in French tort law, or in tort law in general (nor what the qualifier "manifest" means for that matter). Why should human rights victims get better recourse than any other plaintiff before a civil Court? This is once again the sign of the way Human Rights has taken over so many branches of law and where moral considerations take over legal reasoning. But that is, I suppose, a different issue...

I'll try and get hold of the decision and keep you posted if there is anything interesting in it.

On A French Constitutional Irony

2011-03-08T14:54:00.000+01:00

I don't usually blog about French news, but I had to share the irony of what is going on in the current trial of former President Jacques Chirac. As you might not know, he is on trial for having given fake jobs, paid by the Paris municipality, to people who were actually working for his Party, the RPR (which is now the UMP, the party of current President Nicolas Sarkozy).

This situation had already given rise, 10 years ago, to an interesting discussion on the immunity of an acting head of State, which had been affirmed at the time. The immunity fell when Chirac left power, and the investigation led to the trial which started this week.

On the first day of the trial, the lawyer for one of the other plaintiffs raised a constitutional challenge against the statute of limitations for this kind of crime, which starts running, according to the case-law of the Cour de Cassation, on the day they are discovered, not on the day they are committed.
Such a constitutional challenge is possible since a recent reform of the procedure in France. Before that, laws could be sent to the Constitutional Court before their promulgation, but they were untouchable after that. Now, anybody can raise a challenge in a lower court, and, if the question seems to be well grounded, the proceedings are suspended until the Constitutional Court. It is this procedure which allowed the Court to declare the current system of preventive police incarceration to be unconstitutional.

And now for the irony. The Constitutional Court was set up in the French Constitution of 1958, under the influence of both De Gaulle, and his minister, Michel Debré. And it just happens that De Gaulle's grandson and Debré's son are plaintiffs in the current case. More strikingly, the Court is currently presided by Jean Louis Debré, the brother of the plaintiff, and Jacques Chirac, as a former president, actually sits on the Court...
Although there is apparently a procedure to remove a member of the Court in a particular case, this example more generally shows that the reform put in place was not thought through. Indeed, with the Court essentially involved in the pre-promulgation phase, it wasn't so much of a problem that it had such a political composition. However, now that it has such a strong judicial function, its composition should be changed. If the function changes, so does the institution. The current French Conseil Constitutionnel is a vestige from the past, and must be reformed to face the new legal reality.

A short Comment on Libya, Hypocrisy and Selective Outrage

2011-03-02T01:09:00.001+01:00

I am usually not a big fan of "double-standard" discussions, which are usually the source of endless "why here and not there" debates, which are often ultimately excuses either for inaction or for diminishing the importance of a specific action. But I must admit the current situation (pun intended, see previous post) in Libya does lend itself pretty well to this type of analysis.

For one, the referral by the UN Security Council (extensively discussed from a legal perspective here), begs the question of when a situation rises to the point of justifying a referral. William Schabas raised this point in his own comments:

But if the Security Council will move in this way given reports of devastating attacks on civilians, why did it not move in the same way the last time there were such attacks in the same region? I'm referring to Gaza and operation Cast Lead which took place only two years ago, and only hundreds of kilometres away from where Gaddafi is currently massacring his own people.

Although I do not share the typical demagogic singling out of Israel (to stay in line with this post, why mention that situation, rather than an other?), it is a valid question generally. There are a number of situations since the entry into force of the Rome Statute which might have warranted referrals, not just Gaza, but also Ivory Coast, or Sri Lanka, for example. Usually the answer to this is that whoever asks the question is being naive and that it's a question of politics. Maybe. But it doesn't mean that the question shouldn't be asked. In relation to this, and linked to the debate I was having in the comments section of my previous post, I believe that given the extensive power given to the Security Council under Chapter VII, 1) that chapter should be redrafted to provide for clearer safeguards and guidelines on its use, and 2) the UNSC should be reformed to avoid its overtly political use by the veto-wielding powers. I know that is being naive too, but there is no harm in being a dreamer once in a while...

Second of all, the UN General Assembly has voted to suspend Libya from the Human Rights Council. Of course, one can wonder with the International law Prof Blog, why it got elected there in the first place. And it becomes even more laughable when you actually read the composition of the Council. It is presided by Thailand, with its spotless human rights record. Cuba, a paragon of democracy, provides a vice-president, so does Slovakia, a country which has not be singled out by UN Bodies and the Council of Europe for practicing forced sterilization on Roma women. Other members include such such human rights safe-havens as Russia, Saudi Arabia, China and Pakistan. Past members included Algeria, Egypt, Tunisia and Sri Lanka. The members of the defunct Commission on Human Rights all had equally good track records in terms of Human Rights. So the singling out of Libya for a suspension makes perfect sense.

I am not saying that identifying this hypocrisy would justify in any way not reacting to what is happening in Libya. in simple terms, it's not unfair to get caught, just because others haven't. But one must take a step back and reflect on the reasons why a cause gets a spotlight at a given moment, and others do not. Actors on the international scene "choose" a topic and it suddenly enters the zeitgeist. There is a complex sociological web of political actors, NGOs, media outlets which frame priorities and frame minds to look in a certain direction and not another, as the over-emphasis on Darfur and its "genocide debate" or on Israel and anything it does, shows. Not to sound cynical or anything, but some causes sell when others don't. And this applies to NGOs as well, which, in the darker corners of the castles where they put away their shining armors when the night comes, discuss humanitarian markets and compete for them for donations and exposure, in order to sell their own causes as others would sell used cars. But that is maybe a little too cynical, and I'm, once again, straying off topic.

Libya and the ICC: On the Legality of any Security Council Referral to the ICC

2011-02-28T23:48:00.004+01:00

The UN Security Council resolution on Libya has received a lot of exposure in the past few days. Most notable international law blogs have commented upon it. I more strongly recommend Xavier Rauscher's posts over at the International Jurist (here and here), Kevin John Heller's insights over at Opinio Juris, Marko Milanovic's take at EJIL Talk! and William Schabas' thoughts. Given this amount of analysis, I thought I would avoid blogging just to repeat what everyone had said.

but there is one issue that has not been discussed and that is the legality of the referral mechanism as a whole.

As the readers of this blog might know, I remain convinced that the power given to the Security Council, by a treaty other than the UN Charter to effectively make that treaty binding on a non-State party is contrary to international law. I discussed this issue before in relation to the Darfur referral (here and here). You could tell me that I should let bygones be bygones, that the system exists and that I should just live with it. But, I realized I couldn't do so when reading the debate over at Opinio Juris on the "legality" of the following paragraph of the Resolution:

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.

The debate turned around the question of whether this limitation was "lawful" or of "dubious legality" and "ultra vires". And then I asked myself a very simple question? "ultra vires" and "unlawful" in relation to what law or power? It cannot be the ICC Statute, because the UN Security Council is not bound by the ICC Statute, it is only bound by its constitutive treaty, i.e. the UN Charter. And it cannot be the UN Charter, because there is famously no boundaries to the use of Chapter VII. So the UN Security Council can say what it wants and the whole debate actually shows the legal absurdity of the whole UNSC referral system.

Which brings me back to my initial point, the legality under international law of the mechanism as a whole. I cannot see in what reading of the general rules of the international law, the Security Council can be empowered to make a treaty binding on a State without its consent. Even more so if this power does not arise from the UN Charter itself.

If I do play along with the existing system for one minute, I still don't see the problem with paragraph 6 from the ICC's perspective. Kevin John Heller put forward a hypothetical scenario in this respect:

What would happen in the following, obviously fanciful, scenario? Gaddafi is toppled and turned over to the ICC, which initiates a prosecution against him. The SC authorizes a peacekeeping mission in Libya, and during the mission a US peacekeeper commits a war crime. The ICC prosecutes him, concluding that paragraph 6 has no legal force. If the paragraph is not severable and the referral is void, what happens to the prosecution of Gaddafi?

But there are no formal requirements for the content of a referral in the Statute other than the fact that it must be done under Chapter VII. More generally, referrals, whether from States or the UNSC, are not "binding" and don't have "legal force". They can say what they want, and therefore no issues of "legality" actually arise. As long as a "situation" is referred, as defined by the Statute, it only triggers the Prosecutor to move along, and ultimately, his prosecutorial discretion will prevail and any case that arise will be evaluated within the ICC framework based on its jurisdictional criteria. The Prosecutor has said so much in his policy paper on preliminary examinations, where he points out, for example, that he is not bound by a list of possible indictees that a UN report or a truth commission will have set up, or limited to prosecuting one side of a conflict (although this is factually what he has done in Uganda, but that is a different issue). Bottom line, the ICC is not bound by any frivolous extra bits in a referral. Once a State or the UN Security Council has referred a situation, limiting prosecution to blonds with green glasses, or blue men from Mars is not unlawful. It's just irrelevant.
To those who would argue that SC referrals are different that other referrals because they concern non-State parties to the ICC, I would answer that is exactly why you should have refrained from putting it in the Statute in the first place. Once it is in there, the same rules apply in my opinion.

UPDATE: I've continued debating this in the comments section of Opinio Juris, which compels me to make Three extra points here. 1) There is no statutory definition of a "situation" and the case law is quite vague on this issue, so I'm surprised at the over-reliance on this term in the analysis, when the term itself is so empty. 2) more generally, I insist that this is not an issue of legality, in the absence of any "legal nature" of the referral and conditions of its "legality". Referrals are essentially political triggers that don't need to conform to any legal guidelines and previous practice shows that. The Uganda referral mentioned a vaguely defined region ('northen Uganda') and limited the crimes to those committed by the LRA. 3) linked to the previous one, there are other ways of dealing with the issue that the "legality/illegality" approach. To take Kevin's above quoted hypothetical, a Libyan defendant who would contest the referral would just receive the answer that he fits within the limits of the referral. It is only if a UN peacekeeper from the US (for example) is prosecuted that he might claim the protection of the resolution, with the Court considering that the paragraph is either "operable"n or "inoperable".

In conclusion, save for contesting the mechanism as a whole, I think that there is nothing wrong with the SC referral as it stands.

ICTY: an international armed conflict existed in Kosovo during NATO bombings

2011-02-23T18:43:00.001+01:00

Today, Trial Chamber II of the ICTY convicted Vlastimir Dordevic for crimes committed in Kosovo. One thing that struck me when reading the summary of the Judgment, is this statement of the Chamber:

In addition, on 24 March 1999 NATO commenced military operations in the Federal Republic of Yugoslavia, so that the Chamber is also satisfied that from 24 March 1999, until the end of hostilities in June 1999, an international armed conflict existed in Kosovo between Serbian forces and the forces of NATO.

To the best of my knowledge, this is the first time that any international court or tribunal has actually legally qualified the nature of the military operation of NATO in Kosovo in 1999. Serbia's case before the ICJ was rejected on grounds of admissibility and the corresponding case before the ECHR was also rejected at the admissibility phase. As for the ICTY, The Limaj and Haradinaj indictments did not cover the NATO bombing period. In Sainovic, despite the indictment covering that period, the Chamber found that: "Thus, there was an armed conflict between the FRY and the KLA leading up to and into the period of the NATO air campaign" (Judgment, §841). Milosevic does not help either, because the 98bis decision only looked at the existence of an armed conflict prior to the beginning of the bombings. Finally, the OTP report released in 2000 which advised against initiating an investigation for NATO actions, makes absolutely no mention of this aspect.

I need to read the full Judgment in order to understand why the Trial Chamber actually felt compelled to make this statement, i.e., whether the nature of the armed conflict actually makes a difference in relation to the crimes charges, or if this finding is merely the chamber straying into obiter dictum territory.

In any case, it's an interesting finding on many levels. Specifically in relation to the bombing itself, it raises once again the issue of NATO's humanitarian law obligations during the operation.
More generally, it puts on the table once again the issue of the impact of external actors on the nature of a conflict. Of course one could argue that this is a case-specific finding, in light of the fact that NATO was not acting under Chapter VII authorization.
On this point, I see in some of the literature a distinction between civil wars where a neighboring State intervenes in favor of one side or another, thus making it an international armed conflict, and international intervention based on humanitarian purposes, by the UN for instance, which is therefore seen as not changing the nature of the conflict because of an alleged neutrality of the third party. The rationale for this distinction is thus a question of 1) political motivation and 2) UN authorization. I would however argue against the distinction.
In relation to political motivation, I believe that political neutrality is a fiction. When the UN, or any other organisation, intervenes to stop a genocide it is definitely taking sides against the perpetrators. It might have legitimate human rights reasons to do so, but one cannot deny that this also has dire internal political repercussions. In this sense, I would disagree with the preliminary finding of the Pre-Trial Chamber in the Abu Garda confirmation of charges that the conflict in Sudan was an armed conflict not of an international character. From the moment that a peacekeeping force is materially preventing two sides to a conflict from fighting, they are factually participants to the conflict.
In relation to the Chapter VII authorization, I don't see how that should have an effect on the nature of the situation, it is only relevant to the jus ad bellum issue of the legality of the intervention.

With this in mind, I would argue that any external intervention in an internal armed conflict, which has a military component to it makes the conflict an international one. In this sense, I would argue that the Court's finding, irrespective of the issue of the legality of the intervention itself, in the absence of a UN Chapter VII authorization, could generally apply to UN-sanctioned interventions as well.

Obviously, one could consider that the point I'm making is not that important, from a practical point of view. Indeed, however one qualifies the armed conflict, the fact remains that outside actors such as the UN consider that they are bound by the substantial obligations of IHL.
But I believe it is a fundamental point for several reasons. For one, we should lose this illusion of the neutral good samaritan. Factually, any involvement in an armed conflict is a political act, irrespective of the motives. Moreover, conceptually, keeping external actors outside the legal framework masks the ever-changing reality of armed conflict, which is, on the one hand increasingly less "international" in the traditional Twentieth Century understanding of the term and mostly internal, but which, on the other hand, and somewhat paradoxically,increasingly and more and more systematically, involves an international component, through various types of peacekeeping operations.
This new reality of international participation in the hostilities should be acknowledged and the application of IHL to peacekeepers should not depend on the goodwill of the organisation, but on their direct applicability of the conventions as a matter of law.
In relation to that, I'm in favor of the end of UN immunity before national jurisdictions, which even covers war crimes, as the Srebrenica case in the Netherlands showed. It is extravagant that the organisation that imposes on countries not to provide amnesties or immunities for international crimes, should protect itself in that way. But it is now me who is straying off topic and into obiter dictum territory...

A comment on why the STL Appeals Chamber should not have rendered its decision on applicable law

2011-02-17T18:14:00.001+01:00

Over at EJIL Talk!, Marko Milanovic has posted some first comments on the decision issued by the Appeals Chamber of the Special Tribunal for Lebanon on the applicable law. He points out some interesting issues dealt with by the Chamber in relation to the definition of terrorism, or the modes of liability.

I haven't read the decision yet, but I made a comment on the procedure itself that has sparked an interesting debate in relation to the opportunity of having such a decision in the first place. You can read the debate in the comments section of Marko's post, but here are my arguments laid down in a more constructed fashion.

The Appeals Chamber was seized by the Pre-Trial Judge for it to render an interlocutory decision on a number of issues relating to the interpretation of the Statute. It should be pointed out from the outset that this procedure is not provided for by the Statute itself. It is provided for by the Rules of Procedure and Evidence, which are drafted by the Judges themselves. According to Rule 68(G):

The Pre-Trial Judge may submit to the Appeals Chamber any preliminary question, on the interpretation of the Agreement, Statute and Rules regarding the applicable law, that he deems necessary in order to examine and rule on the indictment.

The procedure is laid down in Rule 176bis, which provides that:

(A) The Appeals Chamber shall issue an interlocutory decision on any question raised by the Pre-Trial Judge under Rule 68(G), without prejudging the rights of any accused.
(B) Before rendering its decision, the Appeals Chamber shall hear the Prosecutor and the Head of Defence Office in public session.
(C) The accused has the right to request the reconsideration of the interlocutory decision under paragraph A, pursuant to Rule 140 without the need for leave from the presiding Judge. The request for reconsideration shall be submitted to the Appeals Chamber no later than thirty days after disclosure by the Prosecutor to the Defence of all material and statements referred to in Rule 110(A)(i).

I have a problem with this procedure on several levels which I'll briefly expose now:

Whatever the merits of the procedure itself, from a purely textual point of view, I have a problem with the Judges giving themselves powers that the Statute itself does not give them. For me the whole procedure is ultra vires. In relation to this, I'm surprised that the Judges were given the power to draft the RPE themselves, after the many problems that arose in the ad hoc tribunals in relation to that (ex post facto justification of debatable evidentiary rules, creation of the new offense of contempt, etc.). The ICC rightly chose a different path and I believe it should always be the case Judges not be empowered to draft their own rules. In this sense, I contest the language of the document itself. It cannot be a "decision", and the AC does not "determine" anything. It is at best a consultative procedure and can in no way be authoritative.

Second of all, from an institutional point of view, I find this is a perversion of the system, which leapfrogs the normal judicial process. Normally, an issue is dealt with after it has gone through the several steps of the proceedings, and reaches (or not) the Appeals Chamber based on the arguments of the parties and the reasoning of the other judges. By going straight to the AC at this early stage, it does not leave room for judicial dissent and limits the scope of opposition, even if an accused can indeed appeal some of the findings. In relation to this, the argument of expeditiousness is misleading. If we follow this logic, why bother with a two-tier jurisdiction at all and not ask the AC what it thinks on everything, to avoid too lengthy a trial? Which brings me to another point: the reasoning just assumes that the AC is always right. But that is not the case. Sometimes, I think it is better for a healthy debate to arise between lower-tiered judges for the case-law to settled, like at the ICC, rather than having the AC bully its opinion from the outset. The whole procedure seems to be a be a little too autocratic.

From a functional point of view I think it is just not the role of the Appeals Chamber to do what it did. Indeed, I agree that the Statute is a mess and needs clarification, but that does not necessarily mean that the AC should be given the advisory power to deal with that. One commentator on EJIL Talk!, Guillermo Otalora Lozano, referred to other practice by other Courts, both national and international. I quote him in extenso:

First, it is not uncommon for courts to exercise jurisdiction in abstracto. That is how many constitutional courts function in continental Europe and in my own jurisdiction in Latin America. In fact, the Italian Constitutional Court’s main vehicle of judicial review is the “question of constitutionality”, which is a legal question raised in abstracto by a lower judge. When the judge raises the question, proceedings are put on hold until the Court decides on the constitutional issue that bears on the proceedings. In Spain and Germany, parliamentary minorities may have the Courts review legislation on their constitutionality. In Colombia, some types of legislation are reviewed ex officio for constitutionality before the legislation is even enacted. In short, ex ante review is not at all exotic in judicial procedures in the world. It is not a very ‘common law’ way of doing things, but it is not really a rare thing to do in other jurisdictions. Advisory jurisdiction is also common in many international courts: ICJ, Inter-American Court of Human Rights, International Tribunal of the Law of the Sea, to name a few.

This is certainly true, but I fail to see the relevancy in the current case. The Courts in Guillermo's examples are specifically set up for this purpose. And none of them are seized on the interpretation of the law, but rather on its constitutionality, or more generally its conformity with some other norm. I'm no comparative law expert, but I'm unaware of any system where a lower-court would actually go to a higher chamber to ask it to help it for the interpretation of a law (except the ECJ question préjudicielle, but this is very particular and was specifically set up for the interpretation of EU law). The AC is not a constitutional court, it is a criminal appeals chamber. And that is irrelevant of the fact of it being a civil law or a common law approach.
As for the comparison with other international institutions, it is, in my humble opinion, equally beside the point. They certainly have advisory jurisdiction, but as institutions as a whole towards the outside. The AC is an international court in and of itself. The AC is one chamber within the STL with a specific role in that institution. In any case, in link with my first point, if the drafters wanted the AC to be a consultative body, it should have said so in the Statute. It is not for the judges to self-appoint themselves.

I think a common mistake that is made in relation to international tribunals is to forget about functional specificity. We expect them to do everything and are therefore not surprised anymore when they go beyond their function. It is obvious with the ICC, which is expected to be a human rights court, a reparations court and a forum for victims as well as a criminal court. I think such insistence on trying to stuff so many functions in one institution is a recipe for that institute to fail in all its functions, and, most notably in its core one, that of being a criminal tribunal. But I suppose that is another debate...

Breaking news: Prosecutor of Special Tribunal for Lebanon issues indictments

2011-01-17T22:38:00.006+01:00

A month later than had been originally expected in December, and according to an announcement on the website of the Special Tribunal for Lebanon:

The Registrar of the Special Tribunal for Lebanon, Herman von Hebel, can confirm that the Prosecutor of the tribunal has submitted an indictment and supporting materials to the Pre-Trial Judge. The documents, which relate to the assassination of Rafiq Hariri and others, were handed to the Registry at 16:35PM (local time) on Monday 17^th January 2011. They will now be reviewed by the Pre-Trial Judge, Daniel Fransen. The contents of the indictment remain confidential at this stage.

According to the BBC, and as as reported by Bill Schabas in December, Hezbollah leaders are expected to be named in them. We'll have to wait for the pre-trial judge to issue arrest warrants and for them to be unsealed to get confirmation.

Politically, this is an interesting development, given that the STL is at the center of a typical Peace vs. Justice debate, as mentioned by the International Jurist last week, the indictments being seen as divisive and threatening an already fragile political situation in the country. Even Hariri's son has asked for the Tribunal to back off. Despite this, "The Prosecutor and his team will continue to vigorously pursue his mandate with respect to both continued investigative activity and the prosecution of this case." (statement here) and the UNSG reiterated his support for the tribunal last week.

Legally, I'll have other opportunities to blog about this, but this tribunal has always seemed to me like an ill-thought enterprise from the start, with a poorly defined material jurisdiction (national crimes of terrorism, with only a reference to the national criminal code) and "factual" jurisdiction, for lack of a better word (the Hariri assassination and other crimes which are related to it, whatever that means). Also, what should be interesting, and what we should keep in mind is that the Tribunal is the first to allow trials in absentia, in the civil law tradition. So we don't really need any arrests for trials to go forward. As I've had the opportunity of saying before, I am, on balance, in favor of such trials. Let's have a live example to test the theory. Until I get a chance to share my own thoughts further on the tribunal, the STL has been kind enough to prepare a FAQ document on indictments for the general public.

More at a later stage when the Prosecutor issues a videotaped statement tomorrow.

Some thoughts on the Legal Blogging debate: looking at the shooter, not the gun...

2011-01-07T17:28:00.001+01:00

First of all, a happy new year to my faithful readers, who keep checking for updates despite my poor record in posting in recent months....

To start the year on a light note, I'd like to put forward some comments on Jean D'Aspremont's thoughful discussion of legal blogging over at EJIL Talk. It's a generally positive assesment of this practice, and I share most of his conclusions. I propose here some additional food for thought as a counter-point to Jean's argumentation.

For one, I find it difficult to make comments on legal blogging in general. Some of them have a purely informative ambitions (publications, call for papers, recent decisions...). Others tend to be more analytical. A blog is just a medium of communication that can be used for several purposes, and is not per se hazardous or not. In the same way, there is good quality and bad quality blogging out there and it is for the reader to decide on this. Arguably, given the volume of legal blogging (and I agree with Jean that keeping track is an extremely time-consuming activity), it is harder to sift the good from the bad, but the idea remains the same.

Which leads me to a second point. the analyse should invite a mirror analysis of traditional legal scholarship. Not to sound facetious (and probably proving Jean's point that blogging may lead to comments that "the author of the post may subsequently regret"...), but we've all come accross journal articles and books, even in established and reknowned publications and from esteemed publishers, which have "hasty treatment of the information" and disseminate "half-baked ideas". What we do daily, is exercise judgment, based on our previous experience of a Journal or a specific author, to decide whether to give credit to a particular piece.

The same is true of the blogosphere, which is a far more organised (or at least not any less so than the traditional legal scholarship world) than Jean seems to suggest. There is a handful of established legal blogs out there and I don't think it is that much harder for a jurist in the field to identify them, than to know what traditional journals have a certain reputation or not.

On the interaction between legal blogging and traditional legal scholarship, I do not share Jean's invitation to keep them entirely separate, both in terms of content, and career advancement. It all depends on what your evaluation standards are. Of course, I wouldn't expect a scholar's capacity for thorough research to be assessed by his blog. In the same way, I wouldn't judge a person's capacity to write a book on a few paragraphs online.
However, legal blog writing is a skill and can show a certain capacity to express ideas succinctly and clearly, which can certainly be useful in a academic career, in terms of drafting short notes or abstracts, on which will often depend initial participation in a project or conference.
Moreover, in terms of content, I must admit that I do not share Xavier's humility over at the International Jurist, who says he's not trying to compete with some of the expert blogs. I don't see why a good idea expressed in a blog (and I've read quite a few on Xavier's blog, and hope that I've put forward a couple of my own here) should be less worthy of attention than a good idea developed in a lenghty article. Again, I've seen terrible ideas being developed over the course of entire books, and novel ideas be succinctly put forward in short blog posts.

In any case, I think that one shouldn't oppose legal blogging and traditional scholarship. The former never had the ambition to replace the latter. They are just different means of communication, and they follow similar recognition patterns, in terms of repuation and expertise, as I point out previously. They also have different purposes which are actually complementary. Indeed, a cursory review of the list of contributors of some of the major blogs, such as EJIL Talk, or IntLawGrrls, shows that most of them are regularly published in traditional academic publications.

The bottom line is that what is important, is the author, not the medium. A poor jurist will produce poor scholarship, whatever the means. As regards a good jurist, his capacity to convey his ideas adequately through blogs will depend on the structure of his thought process. Some people need (and want) to cover every aspect of a topic before starting to communicate, others function better in perpetual debate to construct their ideas. Ultimately, as Jean points out, Blogs are a healthy platform for expert's debate. At the end of the day, the quality of the debate will depend on what we, as active contributors, do with it. Any debate on this issue should therefore focus, as Jean does at the end of his contribution, at the shooter, not the gun.

Sljivancanin Review Judgment at the ICTY

2010-12-08T16:43:00.002+01:00

[UPDATE: here is a link to the Review Judgment, which should be online soon]

It's a hectic day for international tribunals. The ICC held the confirmation of charges hearing for two sudanese rebels, Banda and Jerbo (see press release). More to the north, the ICTY Appeals Chamber was rendering its Review Judgment in the Sljivancanin case. Unfortunately, both took place at the same time. Because confirmation of charges take hours, I watched the ICTY hearing and will check out the confirmation of charges later tonight.

I've blogged several times on the ongoing review proceedings of the Appeals Judgment in the Sljivancanin case. Last December, the Appeals Chamber dismissed the motion for revision of the Appeals Judgment by which it had reversed one of the findings of acquital. In July this year, the Appeals Chamber granted the motion to review the Appeals Chamber Judgment based on new facts. Basically, the AC had considered, based on circumstantial evidence, that the Defendant must have been given elements in a conversation that would prove the required mens rea for aiding and abetting murder as a war crime. The new witness that came forward alleged that no such information was exchanged in that specific conversation. The following comments are based on the hearing (here is the Judgment summary).

The AC first rejected all the Prosecution submissions contesting the credibility of witness and found that the new fact did in fact prove that the required mens rea was not present for the crime under consideration. The AC therefore vacated the additionationl conviction, in order to prevent a miscarriage of justice. The AC then quashed the sentence of 17 years imposed in the Appeals Judgment, reducing it to 10 years. There is a dissenting opinion of Judge Pocar (probably calling for remanding the case to the trial chamber for sentencing...) and separate opinions from judges Gunay and Meron.

The first thing to point out, which is already notable in itself for international tribunals, is that everything went as planned. No "however" coming at a late stage of the judgment to justify not taking into account the new evidence, no procedural sidestep to justify a longer prison sentence. All in a all, a simple and logical judgment.

Hearing it, I couldn't help reflect once more on the mess this procedure turned out to be, even if the miscarriage of justice was avoided in the end, because of the actions of the AC. As I pointed out in previous blogs, we have just witnessed the compound effect of what are, in my opinion, debatable legal choices. 1) I don't think that the AC should be allowed to reverse acquittals 2) if it is allowed to do so, it should not be allowed to "re-judge" the case, and it should be remanded to the trial chamber which is the trier of facts and 3) we have clearly seen the limits of the use of "circumstantial evidence" and "reasonable inferrence" ; indeed, in effect we just witnessed a de facto reversal of the presumption of innocence and corresponding burden of proof, with the AC making a finding based on nothing, and the Defendant having to provide evidence to prove his innocence...

One last point is the question of sentencing. It seems to be such an arbitrary procedure. The Presiding judge clearly states that the sentence for the torture conviction took into account the additional murder conviction, thus justifying today's reduction. But we have two different crimes and I believe there shouldn't be such a link between the two sentences. It's about time, as I've said before, that we stop pretending that there is no hierarchy in international crimes, which in effect creates arbitrariness, and call for a clear scale of sentences in relation to each crime, as any mature system of criminal law should contain.
[UPDATE: There is of course the issue of the powers of the AC itself to increase a sentence imposed by the Trial Chamber. As pointed out by Judge Pocar in his (consistent) dissent on this issue, it is contrary to fundamental human rights for the AC to have this power, because there is no appeal of the new sentence by the Defendant. He would have therefore confirmed the original 5 year sentence, without any increase.]

Miscellaneous ICC issues: a bit of a stretch...

2010-12-07T15:19:00.001+01:00

The ICC has been very visibly active in the past week on a variety of issues. Each one could warrant a separate post, but for lack of time, I thought I'd share some random thoughts in one post.

The first issue is the request for cooperation put to the Central African Republic last week in light of the planned visit of Omar Bashir to the country. I've blogged before on the question of whether States have an automatic obligation under the Statute to give effect to an arrest warrant. I believe that they don't, and that there should be a specific additional request to give rise to such an obligation. In the comments to that post I also wondered whether the general request for cooperation to all State parties was in fact in conformity with the Statute:

I'd still have one question on the use of article 89 by the Court in this wholesale way. 89(1) mentions a possibility to issue a request to "any State on the territory of which that person may be found", rather than just "any State". If the second part of the sentence is to have any legal meaning, it can't just be all the countries in the world preemptively... Shouldn't there be some reasonable indication of the presence of the accused on the territory of a State as a condition of the issuance of the request?

This applies, in my opinion, to the specific request put to CAR. Indeed, I find that the decision is unclear as to what the exact legal basis for the request is. It refers to articles 86, 89 and 97, without specifying what specific provision it relies on to request cooperation from a State on whose territory a person might travel. But I suppose I'm just being picky here...

The second issue relates to the annoucement from the OTP that they have opened a preliminary investigation into North Korea. As reported by Xavier over at International Jurist, Professor Schabas, and Kevin John Heller, this raises interesting questions both politically and legally. I would tend to agree with KJH that it seems like a very premature announcement, in light of how recent the events are. I also doubt that the gravity threshold would be met. In terms of PR, it also marks a recent trend by the OTP in communicating much more on his work compared to a few years ago. Indeed, it took some years before the public was made aware of the scope of preliminary investigations, and we only saw two letters (Irak and Venezuela) where the OTP actually explained how he conducted his work in this very grey area of the proceedings.

The last issue relates to Ivory Coast. Deputy-Prosecutor Bensouda asked "political leaders to call on their supporters and fellow citizens to show restraint and avoid unrest". I find this statement ironic in its underlying assumption that the ICC can foster peace, given that Ivory Coast made a declaration under 12(3), recognising the Court's jurisdiction in April 2003, following the very serious unrest that took place at the end of 2002, without the OTP doing anything (visible). I'm also not entirely convinced that, as a judicial body, it is the ICC's role, and more particularly the OTP's one, to make such warnings. But I suppose the proponents of "positive complementarity" would disagree with me...
A point of interest is that the communication by Bensouda assumes that the 12(3) declaration still stands today. It certainly seems the case when you read it (in French), because it does say that it is for an "open-ended period". But I find the langage used ambiguous because it refers to the events of september 2002, rather than any crime committed on the territory from that date. But I suppose the interpretation can go both ways and that Ivory Coast should have done a better job on the drafting if it wanted to avoid any ambiguity.

A couple of concluding points on the general impression that transpires from the three issues I considered briefly. I have the impression that the ICC is in a PR frenzy where it might be biting off more that it can chew. The Court is already struggling to conclude its first trial and has only just started its second one [UPDATE: as pointed out by a careful reader, Bemba is actually the 3rd trial, not the second. I forgot about Katanga and Chui.]. With the institution failing in its judicial function, one has to wonder whether it is wise for it to multiply its interventions in the political area (Ivory Coast) and into bordeline cases such as the North Korean one. Maybe I am not ambitious enough for the Court, but I believe that it should be more cautious at this (still) early stage of its existence.

It's alive! Judicial activity (activism?) at The Special Tribunal For Lebanon

2010-11-12T13:39:00.013+01:00

In the past week, the Special Tribunal for Lebanon, set up in 2007 to prosecute those responsible for the death of Rafik Hariri on the 14 February 2005, has issued several decisions, which, if nothing else, prove that it is still alive. It is however symptomatic of how little progress it is making, at least publicly, that its most important "case" is whether a person arrested and detained for four years in relation to the attack... and then released due to insufficient evidence(!) could request access to his criminal file...

Before deciding on this issue, the President of the Tribunal, Judge Antonio Cassese, had to decide on the motions for disqualification of two Lebanese judges, Judge Riachy and Judge Chamseddine, the former for, among other things, having been involved in the case as a judge on the Lebanese Cour de Cassation before his appointment to the STL, and the latter for having been appointed by an alledgedly biased government. Beyond the legal analysis of the concept of bias in both decisions, and the unsurprising rejection of both motions, there is a noteworthy policy consideration in the Chamseddine decision:

19. As for the appearance of bias, applying the test commonly employed for ascertaining such an appearance (namely, viewing the facts presented through a hypothetical fair-minded observer with sufficient knowledge of the actual circumstances to make a reasonable judgment), I am satisfied that Judge Chamseddine's nomination by the Lebanese authorities does not create any appearance of bias. Time and again the ICTY and other international tribunals have stated that the nationalities of Judges and the policies of their governments are irrelevant for the purposes of determining impartiality. I only add that the Applicant's submissions, if accepted, would have the deplorable effect that no Lebanese judge could ever sit on any Chamber of the Tribunal - thus frustrating the very nature of its 'hybrid' character, with all of the consequences this entails.

This is certainly true on a case by case analysis, but it still raises the issue of the ambiguity of how international justice intervenes in the first place, especially in "hybrid" fashion. The whole point of international justice is that the national system, presumably including its personnel, is inadequate, because of security, lack of ressources, political pressure, risks of partiality etc. This justified the creation of the ICTY/ICTR removed from local politics. It failed in many ways, but at least the message was clear.
What the "hybrid" model aims at doing is re-introduce some national element to increase "local ownership", but incidentally it also imports within the tribunal, the difficulties that had made its creation necessary (for some) in the first place.Why create a hybrid institution if all is fine (including the judges) with the Lebanese judicial system? Why would the national judges be free of possible pressure when sitting in the Hague? and alternatively, if all it takes is that, why create a hybrid court, rather than just have a lebanese criminal court sit elsewhere than Lebanon? Cassese is right to say that a contrary decision would have defeated the purpose of the tribunal, but one can wonder if the purpose itself need not be rethought...

Moving on to the main decision regarding jurisdiction and standing, the Appeals Chamber had to decide whether, despite the limited scope of its mandate, which is to prosecute those responsible for Hariri's death (and some other related acts), the STL could still have jurisdiction to pronounce itself on the request for access of the criminal file by a formerly detained person which is not a suspect, and whether this person has standing. The answer is "yes" on both counts and I'd like to make two series of remarks on the reasoning.

1. The basis for the decision is the famous "inherent jurisdiction" of the Tribunal to "determine incidental legal issues which arise as a direct consequence of the procedures which the Tribunal is seized by reason of the matter falling under its primary jurisdiction" (§45), even when not explicitely envisioned by the founding documents. This theory has often been used, but its legal foundation has always been unclear. Not so anymore, thanks to Judge Cassese:

"47. The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved."

This is an extravagantly drafted paragraph on customary law, and shows that the STL will follow in the steps of its predecessors in its approach to this issue, which is unsurprising, given the presence of Antonio Cassese, who started the ball rolling on the "death by judicial activism" of positivism in ICL as President of the ICTY. Still, there are so many unconventional aspects in this statement that I don't know where I could begin.

First of all, since when do non-state actors contribute to the creation of international custom and, linked to this, since when has "State practice" become simply "practice"? International courts have often shown flexibility in assessing the existence of custom and have often resorted to practice of non-State entities (see the recent Cambodia judgement I commented upon). But I don't recall seeing it being so exclusively the basis for the customary norm, with the intervention of States being relegated to having to explicitly oppose such a practice. The core should always be State practice, even if you show more or less flexibility in introducing supporting evidence from other actors.

Second of all, the reasoning is not that clear semantically. The first sentence refers to the existence of a "general rule of international law" created by international practice, and the second one refers more explicitly to customary law, with slightly different conditions (lack of objection in one case, and implicit acceptance in the other). Several interpretations are possible. 1) We are faced with two different types of norms, which raises the question of the link between the two. 2) Customary law is a sub-category of "general rules of international law", which raises the question of what exactly are "international practice-created" general rules. 3) What seems more likely, is that the judges are using the terms to cover the same thing, which implies, given the different formulations of the two sentences, that the "lack of objection" in the first part of the paragraph is the same as the "implicit acceptance" in the second part of the paragraph. This is an intellectual shortcut (lack of objection might, but does not necessarily mean consent) which would require more elaboration. What is certain, is that this paragraph shows, if not incompetence, at least drafting laziness. It is unprofessional to argue in such a way, such an important issue of international law, with so much unclarity.
Which begs a more general comment on how such an estimed scholar as Antonio Cassese can pen such ill-argued judicial decisions? Or maybe, he has reached such a position in international criminal law that he doesn't need to justify his legal reasoning anymore, just to affirm his legal opinion which passes instantly for legal norms. Which is fair enough, but should he then really be a judge, with the limits that should normally be attached to the function, rather than be an independent (and influential) academic?

Finally, and more fundamentally in my opinion, beyond the debate on the rules relating to the formation of customary law, one has to move back a step and wonder if falls at all in the area of customary law. In the case of inherent powers, we are trying to ascertain an unwritten rule (in a generic sense) relating to the exercise of jurisdiction by international tribunals. How can there ever be national State practice of an international tribunal? it's contextually impossible. The link to States would more logically be found in the establishment of a general principle of law, or, if one wants to show some "progressive thinking", a new category of international procedural principles. Indeed, the STL's drafting is a illustration of a tendency to move towards an autonomised view of the international legal judiciary, but hiding behind a traditional approach. Whether one agrees with this ideology or not, intellectual honesty would require to move away from the traditional notions of sources of international law, and use new ones, rather than trick us into thinking that we are faced with technical changes to the formation of customary law, rather than radical changes in the approach to the international legal order. Methodologically, we must avoid the illusion of thinking that because we use the same term, we are talking about the same thing. It is not because I call a chair a "chair" and a glass a "chair" as well, that you should start comparing them. You will first start by pointing out that this glass, is in fact a glass, not a chair. It is the same here, if we are to speak a common language as scholars and if words are not empty shells, one cannot accept that the "customary law" described by the STL is at all comparable to the "customary law" we had been using before. This is a semantic trap which we should avoid falling into.

[update: Marko Milanovic, over at EJIL Talk!, has also commented on this issue, with the same doubts about the reasoning.]

On the substance of the decision, I'm not entirely convinced by the fact that the STL in fact does have jurisdiction to hear the Applicant on this issue, or that he should have standing. He was arrested in 2005, and was held in custody by Lebanese authorities, not the STL, for 4 years. When the Tribunal started functioning in April 2009, it ordered the release of the person in a little over two weeks. So for the whole period of detention, the STL had some form of authority over him for two weeks, and only through inaction, rather than a positive desire to keep him in custody. My initial reaction would be that it's not the STL's fault or problem if Lebanese authorities violated his rights for so long. Human rights don't exist in an institutional void. The STL never indicted him, considered him as a suspect and more importantly, ordered his detention . He therefore has no procedural rights in relation to that institution. The STL does not technically possess his "criminal" file which he would have a right to access, because it never initiated proceedings of any sort against him. He should turn towards the authorities that did decide on his imprisonment, that is the national ones. If a national judge considers that he should have access to elements in possession of the STL, then it becomes an issue of cooperation between the two orders, which is political and logistical, depending on the arrangements made between the STL and the Lebanese governement, but not judicial in the sense that the Appeals Chamber has considered it as related to the rights of the Applicant, and it therefore certainly doesn't mean that the Applicant should have standing directly before the STL.

This decision is in my view due to a confusion on the exact nature of these international institutions, which are meant to be criminal, but see themselves as human rights institutions. However, in the case of the STL, one can only sympathize with its identity crisis. It's a "hybrid" court, created by treaty/the Security Council, which cannot therefore be considered national, but that has jurisdiction exclusively over crimes contained in the lebanese criminal code, which makes it technically difficult to call it an "international criminal tribunal". The Tribunal is certainly alive, but, torn between different logics, orders and traditions, one has to wonder whether it should have been created at all, and, now that it has, whether is should not be allowed to be "borne away by the waves, and lost in darkness and distance".

Amnesty law Found Unconstitutional in Uruguay: Victory for Human Rights, but what about popular sovereignty?

2010-11-03T14:23:00.004+01:00

On monday, the Supreme Court of Uruguay issued a decision condemning the 1986 amnesty law for crimes commited under the military regime that was in power until 1985. I'm not familiar with the constitutional framework in Uruguay and the legal consequences of the decisions. Some report that the law was declared "unconstitutional" (see here): does it mean that the law is immediately inapplicable? Others report that the law was "annuled" (see here). I haven't read the decision (if someone has it in English, i'd appreciate receiving it!) but apparently, the Court invoked Uruguay's human rights obligations to respect victim's right to reparations and to know the truth.

This is a new decision in the trend against amnisties in international law, and is, in this sense not particularly groudbreaking. I won't go into a debate here on the general question of Amnisties (I invite you to read my forthcoming paper on this). What strikes me more particularly in this case, beyond the legal technicalities, is that the law was upheld by referendum, not once, but twice, the last time as recently as 2009, despite strong opposition from rights groups. I find it a little disturbing, in the broader political scheme of things, that the democratic popular expression of opinion be given so little consideration. In 2009, after the referendum, the regional director of HRW said that: "let's not forget that accountability is not a popular contest that should be decided by majorities". Actually, it kind of is. Society makes a choice to criminalize some conducts and not others. And the least worst way we have come up to evaluate support for such choices is requiring a majority. In other words democracy. What kind of arbitrary criteria allows HRW to decree that democracy is a good thing, except when people don't vote "right"? If the referendum had gone the other way, I'm sure that same person would have applauded the popular support against amnisties.

It is a difficult balance to be struck between majority decisions and minority opinions in any democracy, and a harder balance even between human rights and political compromise in situations of transitions, and I certainly do not claim to have the answer. But as a rule, I would tend to give quite some credit to the free expression of public opinion as a starting point. The majority principle (with qualifiers or not), is effective in that it allows institutions to move forward. Whereas, minority power can only lead to political stalemate. This is of course schematic, and doesn't mean that there shouldn't be any normative framework (both procedural and substantial) surrounding the exercice of democratic expression. But as a rule of thumb, I have difficulty seeing how a law disapproved by a majority can be politically legitimate.

This reasoning of course implies adopting a collective/social contract approach to political analysis, which is a little removed from the individual approach, where rights emerge from above and social relationships are totally depoliticised. Indeed, how could they not be where the origin of rights is transcendental, rather than emerging from some form of popular consensus? you cannot argue with a priori morality. I find it ironic that such effort was put by intellectual and political leaders over the centuries to free themselves from the Church by breaking down the conflation between the temporal power and the spiritual power, only to see the latter re-enter through the prism of Universal Human Rights in recent years. Apparently, nothing much has changed since the Middle Ages...

Defence counsel immunity at the ICTR: there in theory but harmless in practice?

2010-11-02T17:54:00.000+01:00

As you may recall, Peter Erlinder, a defense counsel at the ICTR, made the headlines a few months back (in June) for having been arrested in Rwanda, along with Kagame political opponent Victoire Ingabire, on charges of genocide denial under Rwandan law. The detention did not go well, to say the least, Erlinder having alledgedly tried to commit suicide, and he was released some time later, with charges still pending. At the time, this sparked some interesting debates on the nature of laws prohibiting denial of genocide, and the political use of the such laws in Rwanda (including on this blog).

One key legal question that remained to be answered was the existence and extent of any immunity afforded to Erlinder as a defence counsel, given that, at the time it wasn't entirely clear if the statements that were considered for the charges were made in the course of his work at the tribunal or not. Some weeks ago, on the 6th of October, the Appeals Chamber of the ICTR issued his decision on the immunity of Peter Erlinder, the defense counsel for one of the accused. I didn't have time back then to comment on it, but still wanted to say a few words.

As to the existence of an immunity:

26. [...] Defence Counsel benefit from immunity from personal arrest or detention while performing their duties assigned by the Tribunal and also with respect to words spoken or written and acts done by them in the course of the performance of their duties as Defence counsel before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article 29 of the Statute.

This decision is based on an interpretation on the MOU between Rwanda and the ICTR, and an application of the Convention on the Privileges and Immunitities of the United Nations. In light of the latter document, Defense Counsel are to be considered experts and

23. [...] While Defence Counsel are not officials of the Tribunal, some guarantee is necessary for the independent exercise of their Tribunal assigned functions which are integral to its functioning. Accordingly, the nature of their mission, which is to engage in preparations for proceedings before the Tribunal, is the defining factor in granting them such privileges and immunities as granted to experts on mission - not their administrative status with the Tribunal.

This recognition that Defense lawyers should benefit of some form of immunity is welcome, as it would be incompatible with principles that they not benefit from equivalent protection as the Prosecutor.

Where the decision is more problematic is on the extent of the immunity. Indeed, they adopt a narrow reading of the immunity. Basically, the Court finds that because Erlinder is being essentially charged with statements done as an academic or a commentator (except for one of them), and not done directly in the context of the representation of his clients, he was not covered by the immunity. There is some logic to the statement... but it is extremely short-sighted in light of the rationale behind the immunity in the first place. Indeed, The ICTR holds that

30. [...] Ntabakuze's right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

But how can Erlinder adequately prepare for the defense of his client if he is in jail, whatever the charges? Or if he cannot set foot in Rwanda for fear of being arrested? This completely defeats the purpose of immunity.

This result is due to the in fact suprisingly unsophisticated discussion on the concept of functional immunity in the decision, especially by not taking into account the temporal dimension. On this point, one can refer to the ICJ Arrest warrant case, where it went into some detail on the scope of official immunities. It found, among other things, that (§61):

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the iinmunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his oir her period of office, as well as in respect of acts committed during that period of office in a private capacity.

I know this judgment was strongly criticised in relation to the extent of immunities applying to crimes that fall under the jus cogens category, but for the purposes of our situation it seems to be a perfectly sensible solution. The immunity stands during the time a person is in "function", both for personal and professional activities, in order to allow the good exercise of the function. Once the function seizes, the immunity from prosecution falls in relation to private acts, but remains in place for acts done in an official capacity. This would mean that Erlinder would be immune from prosecution altogether now, but could face charges for his "private" comments later, while still being protected for statements made in the course of his defense, thus continuing to protect the current functioning of the Tribunal, "which requires that Defence Counsel be free to advance arguments in their client's case without fear of prosecution" (§29 of the decision).
It should be point out, as did the ICJ in the Arrest Warrant case (§60) that immunity does not mean impunity. It is mostly a temporary obstacle to prosecution, but does not remove individual responsibility once it is lifted.

It is intellectually puzzling that the Tribunal, having so clearly recognised the necessity for functional immunity, so dramatically fails to recognise the logical practical requirements to give it full effect. As a result, the Appeals Chamber has proposed a wobbly, and I believe ultimately inefficient system of protection for defense counsel in international tribunals and at the end of day of protection of fair trial rights. This is not the first time, and therefore unsurprsing, but disappointing nonetheless.

Follow-up on Lubanga and the possible removal of ICC Prosecutor by the ASP: it's "definitely" not going to happen, says the President of the ASP.

2010-10-14T17:04:00.002+02:00

I ended my previous post on the possible next steps after the Appeals Chamber Judgment reversing the stay of proceedings in the Lubanga case. I would like to make a couple of follow-up comments on this point.

For one, it is likely that contempt proceedings be initiated by the Court in accordance with article 71 of the Statute. In accordance to Rule 171 of the RPE, the Chamber can pronounce the removal from the proceedings of a person who has failed to comply with an order of the Court, or even, if the person is an official of the Court, order an interdiction to exercise their function for a period up to 30 days. And of course, they can fine the person as well.
I still don't see how this is linked to the opportunity of staying the proceedings or not. If the prosecutor were being accused of bribing witnesses (which is not far removed from the underlying accusations against the OTP intermediaries in this case...), would the Chamber have an obligation to keep the trial going while it initiated proceedings under 71, even if it means that corrupt witnesses are testifying? It wouldn't make sense. You have to make sure that the underlying cause justifying the stay has ceased to exist before you can resume the trial.

Another (independent) avenue is action by the ASP. This could lead to disciplinary measures (Article 47) which may be (very scary) "(a) A reprimand; or (b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned" (RPE, Rule 32). Or, if the conduct is sufficiently serious, the ASP can vote by an absolute majority of States a removal from office (Article 46). There is no middle-ground between the two, such as a temporary suspension. However, this oversight is partly compensated by the fact that the Chamber can suspend the person temporarily. It should also be pointed out that the proceedings are not initiated directly by the ASP, but should be triggered through a formal complaint to the Presidency, or proprio motu by the Presidency (Rule 26 RPE).

In relation to the latter possible proceedings at the ASP, the Asser Institute hosted a lecture by Ambassador Wenaweser last night, where the President of the ASP shared some of his thoughts on the Kampala Conference and more generally on what lies ahead for the ICC. In response to a comment he made on strenghtening the role of the ASP, I asked him if he had any thoughts on the ASP using its powers to sanction or even remove Prosecutor Ocampo. He was fairly evasive on the ASP looking into things more generally, but his answer was crystal clear on the removal aspect: this will definitely not happen. Of course, this is unsurprising politically. But this statement is problematic, both substantially and procedurally.

From a substantial point of view, you have to wonder what the Prosecutor must do to be removed, if his conduct in the Lubanga case is not sufficient to at least consider the possibility. In Lubanga alone, he has voluntarily misrepresented the Statute not to communicate UN documents to the defense. He has refused to obey Court orders. Also, we mustn't forget the underlying situation behind the recent current events, which have taken a backseat to the procedural drama of the stay of proceedings : his intermediaries are alleged to have interfered with witnesses, which, if established, would be a massive breach of the fairness of the proceedings.

Beyond this substantial aspect, it is problematic that the President of the ASP would express a preconceived opinion about the possible outcome of a formal procedure provided for by the Statute and the Rules of Procedure and Evidence. This is just as inappropriate as a judge saying in advance that a defendant will go free before his hypothetical trial takes place.

This is a sign of the general impunity for the organs of international tribunals, which is ironic given that their overarching mandate is specifically to fight impunity. Judges have been caught sleeping. Prosecutors have been accused of paying witnesses. Decisions have been taken that clearly undermine the rights of the defense on a daily basis, both subanstially (for example new crimes being added through the haphazard use of customary law) and procedurally (for example the very lax rules on the admission of evidence). All these events would constitute serious miscarriages of justice by any normal standard, but end up having little to no consequences in international tribunals under the guise of the superior moral objective of these institutions. Of course, I'm not equating some of the procedural improprieties that I mention previously, to the serious crimes alledgedly committed by the defendants. But the underlying principle behind these tribunals should apply in their daily working: if there is no accountability, there cannot be justice.

To come back to the specific issue at hand, one could argue that it wouldn't look good and would be a sign of weakness for the ICC to remove (or sanction) its Prosecutor. But for me, this is a short-sighted analysis. On the long-run, the legitimacy of the Court will depend on its capacity to publicize its successes, but also to accept the consequences of its failures. It is a sign of the maturity of an institution that it can acknowledge its mistakes, rather than sweep them under the carpet, as it keeps doing in the Lubanga case. All they will achieve is to create this increasing mound of dust over which Justice, as the long-term goal of the institution, can only stumble eventually.

Self Promotion: the ICJ, Kosovo and the Twilight Zone Effect

2010-10-12T14:33:00.000+02:00

The Hague Justice Portal has just published my new commentary on the ICJ Kosovo advisory opinion. It's part of an online series discussing the issue, with Jean d'Aspremont, Eric de Brabandere, Jure Vidmar and Tarcissio Gazzini.

I basically argue that the difficulties arising from the decision come from the fact that the Court accepted to answer a question about the legality of the conduct of individuals under international law, which is outside its natural jurisdiction. It should have refused to answer the question asked, or, alternatively, tried to attribute the conduct to the ultimate entity in charge, in this case, the UN.

International Justice marches (limps...) on (again): ICC Appeals Chamber reverses stay of proceedings in Lubanga

2010-10-08T15:45:00.003+02:00

In July, Trial Chamber I ordered a stay of proceedings in the Lubanga case because the OTP was refusing to comply with an order to disclose the name of an intermediary to the defense. As I related at the time, the TC considered that it had lost control over its capacity to insure the fairness of the proceedings if the OTP could decide unilaterally to not comply with an order of the Court. A few days later it ordered the release of Lubanga.

The Appeals Chamber just issued its Judgment on the Prosecutor's appeal, and the result is unfortunately not surprising. Once again the AC recognises that the OTP has violated its obligations under the Statute... but there is no immediate consequences and Lubanga remains in jail (see separate Judgment on that)!
More specifically, the OTP had raised three issues.

The first one was that the OTP was under an autonomous duty to protect witnesses and should be able to not comply with a TC order, should it consider that it would violate this autonomous duty. The AC rightly recalled that orders of the TC are binding on all the parties until changed or suspended by the AC.

The second related issue was that the burden to insure fair trial was a shared one between the Court's organs, and that in case of contradiction between OTP and TC, there should be a coordination of the two until accepted adjustments are reached. On this, the AC affirmed that the the TC is the ultimate guardian of fair trial and that the OTP cannot supplant TC orders. Any conflict between the two should be resolved in favour of the TC. I of course agree with the AC and I find it a little shocking that the Prosecutor, who has so often shown his attachment to fairness by, for example, publicly misrepresenting Court decisions to imply that the issuance of an arrest warrant is tantamount to a finding of guilt, as in the Bashir case, should have the chutzpah to claim that the duty to insure the fairness of the proceedings also rests on his office...

Finally, the OTP argued that the stay of proceedings was a "premature and excessive" remedy and that the TC could have used its powers under article 70(1) to punish the Prosecutor and find alternative ways to compensate Lubanga. The AC agreed with the TC that the conduct of the Prosecutor, who claimed that he could decide not to implement a Court order based on his own interpretation of the Statute, could indeed constitute a grave enough situation where it would be impossible to insure a fair trial and could therefore justify a stay of proceedings. HOWEVER (of course, however...), the TC erred in concluding that it had lost control over the trial in this specific instance. It could have used Article 71 and impose sanctions on the Prosecutor to try and obtain compliance BEFORE ordering the stay of proceedings. The decision of the TC is consequently reversed. As a result, the decision to release Lubanga is also reversed, and the AC considered that it was not appropriate to make a finding on whether the Prosecutor's actions constituted an "inexcusable delay" that might justify release under Article 60(4) of the Statute.

So, as usual, the Appeals Chamber is entirely predictable in his reasoning, ultimately not wanting to jeopardize the ICC's first trial too much, despite the Prosecutor's continued best efforts to sabotage it. Although it is disappointing that the Prosecutor is once again given a chance to repair the damage, rather than reaping the consequences of what he sowed, there is some satisfaction to be found in the clear slap of the wrist received by the OTP for its conduct. I do have an issue with the reasoning of the Court on the last point raised by the Prosecutor. I'm not sure I see the link between the order of a stay of proceedings and the possible sanctions under Article 70(1) and 71. Indeed, whether or not sanctions are possible, the fact remains that the official position of the OTP is still that he doesn't have to comply with TC decisions and that is the basis for the stay of proceedings. Until that position changes, whether through a voluntary change of mind, or sanctions, the trial cannot go on and the stay is justified in my opinion.

In any case, the next step is twofold. First, the TC should definitely initiate proceedings under 70(1) and 71 for offences against the administration of justice, which could even justify, according to KJH at Opinio Juris, his removal by the ASP. Second, the defense should file a new motion under article 60(3) to obtain Lubanga's release. If this doesn't constitute "inexcusable delay" on the part of the Prosecutor, I don't know what does. Until then, international justice marches (limps...) on...

Internal Investigation Opened against members of the Prosecutor's office at the ICTY

2010-07-29T17:14:00.000+02:00

The conduct of the OTPs of international tribunals has often been questioned with regards to witnesses. I recently blogged about the stay of proceedings in the Lubanga trial at the ICC, following the Prosecutor's refusal to follow the court order requiring him to provide a list of certain intermediaries whose conduct in relation to witnesses had been questioned by the defense. At the Special Court for Sierra Leone, there have been allegations that prosecution witnesses were bribed to obtain their testimony.

In relation to this, I have just become aware of this order from Trial Chamber III in the Seselj case, ordering an independent amicus curiae investigations into allegations by the defendant that the Prosecutor exercised pressure on a certain number of witnesses to secure evidence against him.

The motion for contempt proceedings against, among others, Carla del Ponte was initially filed confidentially in 2007 and the Chamber had ordered "ordered a stay for purposes of ruling on the Motion for Contempt until the conclusion of the trial in order to avoid delaying the start of the trial". However, in light of new evidence, the Chamber decided to exercise its proprio motu powers to reconsider its decision.

The Defense provided a list of alleged misconduct by the Prosecution, as illustrated in the following paragraph:

17. The Statements allege as fact that the Prosecution indeed contacted these persons and that interviews were indeed conducted by investigators working for the Prosecution. As such, the Statements mention sleep deprivation during interviews, psychological pressuring, an instance of blackmail (the investigators offered relocation in exchange for the testimony they hoped to obtain), threats (one, for example, about preparing an indictment against a witness if he refused to testify), or even illegal payments of money. According to certain Statements, the testimony produced from the interviews with the investigators from the Prosecution was not (or almost never) re-read by the persons signing it. In the Statement signed by [redacted], there is even an account of him allegedly signing the first page and the members of the Prosecution allegedly signing his initials on the other pages themselves. In the Statement signed by [redacted], there is mention that he allegedly had an interview with the members of the Prosecution in a public place. Lastly, in the Statement signed by [redacted], it is mentioned that he was allegedly poisoned.

In light of this, the Chamber held that:

29. This information is taken quite seriously by the Chamber, which refuses to allow any doubt to fester concerning a possible violation of the rights of the Accused and concerning the investigation techniques employed by certain members of the Prosecution in this case.

and therefore "the Chamber finds that an amicus curiae ought to investigate the Motion for Contempt and inform the Chamber whether there exist prima facie sufficient grounds to initiate a proceeding for contempt against certain members of the Prosecution." The investigator should be designated by the Registrar (which hasn't done it yet, to the best of my knowledge) and will be given 6 months to investigate.

Given the gravity of the alleged conduct, one would also expect the proceedings to be stayed until the conclusion of the investigation, but apparently this has not been ordered.

Hat-tip to Priyanka

Bangladesh War Crimes Tribunal: step forward for the fight against impunity, leap back for the rights of the defense...

2010-07-28T20:23:00.006+02:00

I had completely missed the fact that Bangladesh created this year a special Tribunal to prosecute the crimes committed during the 1971 war of independence against Pakistan. The Tribunal started functioning in March this year, at the same time as Bangladesh ratified the Rome Statute, and apparently issued its first arrest warrants this week.

One aspect that caught my attention is the denomination given in one article: "International Criminal Tribunal", and the fact that it was set up with the assistance of the UN. Are we therefore in the presence of a new hybrid Court? In fact, the denomination is not the official name of the court, and there was no formal agreement between the UN and the country, so it's a purely national tribunal.
[UPDATE: The confusion on the name of the tribunal is due to a mistake by the JURIST: ICT stands for "International Crimes Tribunal", not "International Criminal Tribunal". See ICTJ report issued July 30th]
[UPDATE: The JURIST has corrected the mistake]

Another interesting aspect is the applicable law, the 1973 International Crimes (Tribunals) Act, which was amended in 2009. As pointed out by Steven Kay at ICLB, it's an interesting and little known piece of post-Nuremberg and pre-UN war crimes tribunal legislation".

It gives the tribunal jurisdiction over crimes against humanity, genocide, crimes against peace, violations of the Geneva Conventions, and "any other crimes under international law", the last one raising obvious questions in respect to the principle of legality.

Apart from jurisdiction, I saw three other notable features of the procedure.

The section on the rights of the accused is quite succinct. It reads as follows:

17. (1) During trial of an accused person he shall have the right to give any explanation relevant to the charge made against him.

[...]

(3) An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.

The accused basically has a right to defend himself against the charges. What a relief... and there is no mention of the presumption of innocence.

The section on evidence is also quite striking:

19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.

[...]

(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.

(4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organisations.

At least, the Act is honest about its desire for expeditiousness. I'm just a little curious as to what "non-technical procedure" is... It sounds like a nice way of saying "absence of procedure"... Also, the scope of possible judicial notice is quite wide, to say the least. The Bangladesh Government is well know for its spotless and impartial record in reporting, and the UN and NGOs always get it right. Why not just take judicial notice of the accused's guilt (everybody probably knows he's guilty) and not have a trial at all...

Finally, in terms of judgment and sentence (Article 20), there is no mention of the burden of proof for conviction and the Act provides for the application of the death penalty.

Once again, the rights to a fair trial take a back seat to the fight against impunity, despite the legitimacy of the latter depending in large part on the respect of the former. In this case, the UN and NGOs should distance themselves from this endeavor (I've done a rapid search on google, but failed to find any condemnation. If anybody cares to point me towards them if they exist? to be fair, a HRW report does call for respect of the rights of the defense and non-application of the death penalty) which appears to be a mockery of justice.

Just to be clear, I'm not suggesting that Bangladesh can't do want it wants. If that is what the Bangladesh population want, fair enough. But the international community cannot and should not officially support it.

[UPDATE: The Criminal Law Forum has a Special Issue on the Bangladesh Tribunal this month]

[UPDATE: I was using the version of the Act before the 2009 amendments (i've updated the link to the law with the correct version now). The parts I analyse are however unchanged. But to be fair and comprehensive, I should point out that they did add a new provision which states that:

(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.

And to think that I was doubting that in light of the rest of the Act... I'm totally reassured now...]

The First Judgment at the (un)Extraordinary Chambers in Cambodia and the question of Crimes against Humanity

2010-07-26T22:41:00.000+02:00

The Extraordinary Chambers in the Courts of Cambodia (ECCC), which started functioning in 2006 after lengthy negotiations to try the (remaining) leaders of the Khmer Rouge Regime, issued its first Judgment today in the trial of KAING Guek Eav alias "Duch", the former commander of the infamous S21 prison.

The Judgment was going to have a tough time to maintain the drama of the end of the trial which saw some extraordinary (no pun intended) bickering between the co-counsels, with one of them being fired and the other suddenly launching in a virulent challenge to the jurisdiction and the legitimacy of the Chamber, despite apparently not having raised the issue previously, and then creating some confusion on the plea entered by his client.

Various comments can be made on this Judgment, for example on victim reparations, and on sentencing. I'd like to briefly focus on its discussion of crimes against humanity.

Indeed, One question which was going to be an issue from the start was the content of customary law at the time the crimes were committed, more specifically in relation to crimes against humanity and the link with the existence of an armed conflict. If today, there is really no doubt, after the case-law of the ad hoc tribunals and the Statute of the ICC, that crimes against humanity can be committed in time of peace, things are not so clear for1975-1979, which is the scope of the temporal jurisdiction of the ECCC.

The Chamber finds that the nexus was no longer required in 1975. Maybe it is right, but it is not convincing. Indeed, the reasoning is just as poor as it was in Tadic. I reproduce the (concise) argumentation of the Chamber for the sake of clarity:

291. In particular, the Chamber notes that Article 5 of the ECCC Law does not require a link between crimes against humanity and armed conflict. Although Article 6(c) of the Nuremberg Charter required a nexus between crimes against humanity and armed conflict, such a nexus was not included in the 1945 Control Council Law No. 10, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1954 International Law Commission’s Draft Code of Offenses against the Peace and Security of Mankind, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. The notion of armed conflict also does not form part of the current-day customary definition of crimes against humanity.

292. International tribunals that have subsequently considered the issue have also found that the notion of crimes against humanity existed independently from that of armed conflict under customary international law prior to 1975. The ICTY Appeals Chamber has stated that the armed conflict requirement in Article 6(c) of the Nuremberg Charter was a jurisdictional issue, thus implying that it was not required under customary international law even in 1945. The Grand Chamber of the European Court of Human Rights has noted that, while the nexus with armed conflict initially formed part of the customary definition of crimes against humanity, this nexus may no longer have been relevant as of 1956. The Group of Experts for Cambodia appointed pursuant to General Assembly Resolution 52/135 similarly concluded that “[t]he bond between crimes against humanity and armed conflict appears to have been severed by 1975.” The Chamber therefore considers that the lack of any nexus with armed conflict in Article 5 of the ECCC Law comports with the customary definition of crimes against humanity during the 1975 to 1979 period.

Let's analyse this in order:

Control Council Law N°10: Yes, the definition of crimes against humanity does not include the nexus with armed conflict (Article II.1.a). However, article I makes the London agreement, which enacts the Nuremberg Statute and which does contain the nexus, an "integral part of this Law". So it is not that clear. Especially as the Nuremberg Principles adopted by the ILC reproduce the Charter of Nuremberg, with the armed conflict nexus, not Control Council Law N°10...
1948 Genocide Convention: even if conceptually, I'm in favor of considering genocide as a sub-category of Crimes against Humanity, it was not legally conceived in this way at the time. Genocide is a discrete crime and the fact that the armed conflict nexus is not contained in the definition of genocide is not relevant for knowing if it is still contained in the definition of crimes against humanity. And even if one considers that Genocide is a sub-category of crimes against humanity, the disappearance of the nexus for one form of a crime, does not logically necessarily indicate disappearance for the totality.
1954 Code of Crimes: does not even mention crimes against humanity!
1968 Convention on non applicability of Statute of limitations: more tricky, as it, at the same time, says that it can be committed both in time of war and in time of peace, and says that it is defined by the Nuremberg Charter which does include the nexus.
1973 Convention on Apartheid: Same as for genocide, the absence of the nexus for one occurrence of crimes against humanity, does not logically imply the absence of the nexus for all crimes against humanity. You could even argue that it the specific nature of Apartheid that justifies the exclusion of the nexus. Also, the Convention only came into force in 1976, so one can wonder at the customary nature of the content of the treaty at that point in time...
Tadic: The Appeals Chamber in Tadic deals with the issue in the same way. Affirming with little evidence that the nexus no longer exists. More specifically, it considers that it "was peculiar to the jurisdiction of the Nuremberg Tribunal" and that "there is no logical or legal basis for this requirement" (§140). For one, it doesn't explain why it was "peculiar". Second of all, the question of the "logical" basis is not relevant for a court of law the function of which is to apply the law, not question its logic. I could point out several instances of lack of logic in the drafting of the ICC Statute, but it doesn't mean that Judges should be allowed to change it as they see fit. And thirdly, linked to the second point, the "legal" basis is that it is in the law! The drafters of the Nuremberg Statute decided to put the nexus there, so that constitutes the legal basis for the nexus.
ECHR and group of experts: nothing much to add to this, apart from 1) questioning the relevance of these statements for the ECCC and 2) pointing out that "may no longer have been relevant" and "appears to have been severed" hardly seems like strong enough evidence to rely on to establish the content of a customary norm with sufficient certainty as to conform with the principle of legality.

But even if one were to accept these references, what is notable is the absence of evidence relating to the traditional components of customary law. I was taught in university that you needed to establish both opinio juris and state practice in order to identify the existence of a customary rule, not international case law or pronouncements by experts. However, the expression "opinio juris" appears nowhere in the reasoning and there is no mention of state practice whatsoever at this point in the argumentation (Eichmann is given as the sole example of State practice for prosecution of crimes against humanity earlier on in the Judgment). The ECCC therefore managed, and it is quite a feat, to be even less convincing than Tadic, which at least formally claimed that the nexus "has been abandoned in subsequent State practice with respect to crimes against humanity", without however quoting even one relevant national criminal code...

I suppose that after the slamming of JCE by the ECCC Pre-Trial Chamber in the Ieng Sary Case, I had unreasonable expectations, but it turns out that in fact, there is nothing extraordinary about the Extraordinary Chambers in the Courts of Cambodia...

Some Additional Thoughts on the ICJ Advisory Opinion

2010-07-23T17:12:00.000+02:00

I've read through the main opinion and the other opinions and it confirms my initial impressions during the issuance of the Opinion yesterday afternoon.

On jurisdiction, I was a little puzzled by the length of the discussion on the question of whether the Court should exercise its discretion in relation to the question. It all seemed quite basic stuff, given past case-law of the Court which has generally said that 1) the fact that the Security Council is dealing with something doesn't mean another organ can't discuss it and 2) the political dimensions of a question do not prevent a legal analysis. However, some dissenting opinions (Bennouna, Skotnikov, Keith, Tomka) actually thought that the Court should have declined to answer the question.

On the scope of the question, I'm generally not in disagreement with the opinion. Some separate opinions consider that it was too narrow. Judge Simma said it applied too strictly a "tired" version of the Lotus logic that what is not proscribed is allowed. For him, there is a more public law aspect to international law today, and the Court should have done a more thorough search of the relevant law on independence before answering the specific question. Judge Trindade, in a separate opinion 1,5 times the size of the majority opinion, launched himself in a emotional, but in my opinion ultimately irrelevant plea for taking into account "human suffering" as a criteria for independence. Equally, Judge Yussuf thought the Court could have taken the opportunity to define the scope of self-determination in a post-colonial world. Others (Koroma) thought that it was still too broad and that the Court went beyond its powers in considering that when the GA explicitly mentioned the authors of the UDI as the "Provisional Institutions of Self-Government of Kosovo", they actually didn't mean that, and wanted to know who the authors are. I would tend to agree with that actually. The fact, as the Court points out, that this was not discussed in the GA debates, doesn't necessarily mean that it was an open issue, it might just mean that it was a settled issue. By second guessing the GA like it does, the Court is opening itself to the criticism of why it is re-interpreting the question in this instance, and not in another (for example, by saying that the GA really wanted to know if Kosovo was an independent State).

Which brings me to my main point of contention with the decision: that the authors of the UDI were not acting in their official capacity as Members of the Assembly. The reasoning is just as unconvincing as I thought. The authors of the declaration met in the Assembly, called a special session of that Assembly, and met as the democratically elected representatives of the people in elections set up under the control of the Constitutional Framework, which is the only basis for their right to be present in the assembly to make the UDI in the first place. But they are still considered as private citizens by the Court, based on their intent to be so considered. How can you evaluate whether someone is bound by a legal framework based on the subjective desire not to be bound?
In this sense, I can only agree with Koroma:

5. It is also question-begging to identify the authors of the unilateral declaration of independence on the basis of their perceived intent, for it predetermines the very answer the Court is trying to develop: there can be no question that the authors wish to be perceived as the legitimate, democratically elected leaders of the newly-independent Kosovo, but their subjective intent does not make it so. Relying on such intent leads to absurd results, as any given group ⎯ secessionists, insurgents could circumvent international norms specifically targeting them by claiming to have reorganized themselves under another name. Under an intent-oriented approach, such groups merely have to show that they intended to be someone else when carrying out a given act, and that act would no longer be subject to international law specifically developed to prevent it.

And Bennouna:

44. The facts that the authors of the Declaration, members of the Assembly of the Provisional Institutions of Self-Government of Kosovo, cited the breakdown of negotiations and that they did not intend to act within the framework of the interim régime of self-government (Advisory Opinion, paragraph 105) do not by themselves change the legal nature of an act adopted by the Assembly of the Provisional Institutions of Self-Government of Kosovo. In law, it is not merely because an institution has adopted an act exceeding its powers (ultra vires) that the legal bond between the institution and the act is broken. In such a case, the institution must be considered to be in breach of the legal framework that justifies and legitimizes it.

45. Similarly, it is not because the Assembly trespassed on the powers of the Special Representative (Advisory Opinion, paragraph 106) by involving itself in matters of Kosovo’s external relations that it must be considered as acting in a different capacity or as an entity no longer related to the Provisional Institutions of Self-Government of Kosovo. Here as well, the Assembly simply committed an act which is illegal under international law.

Although I'm the first one to defend the ICJ against those who claim that it says what it didn't say, in this part of the decision, i'm struggling to see how the reliance of the ICJ on the intent of the authors of the UDI, and is not an implicit endorsement of the declaration itself.

One final comment on the applicable law. I've read in some comments already that the Constitutional Framework and UNMIK resolutions should not necessarily be considered as applicable international law because "after all they are intended to take effect only within a particular domestic system of law". I would actually side with the ICJ on that one. The question is not the setting (all law is meant to be applied in a specific setting), it's the nature of the norm and the applicable legal order. For me, a territory under UN administration cannot be seen as a national legal order. There's no "national" at this point, or "domestic". Moreover, the source of legal, judicial and even constitutional authority in Kosovo clearly derived from a Security Council Resolution. I don't find it therefore scandalous to conclude that the norms adopted in this context are at least international enough, and sufficiently integrated in the international legal order, to be considered as relevant international law for the ICJ. But I'll have to consider this "hybrid" issue further in my PhD (forthcoming...).

And to conclude on a little poetic note, showing that law needn't necessarily be dry, I love the final line of Bennouna's opinion:

Such declarations are no more than foam on the tide of time; they cannot allow the past to be forgotten nor a future to be built on fragments of the present.

ICJ Kosovo Opinion Files for Download

2010-07-23T13:13:00.002+02:00

The ICJ Website still seems to be unavailable. Here is a link to the opinion, and the separate and/or dissenting opinions by Judges Bennouna, Koroma, Skotnikov, Keith, Sepulveda-Amor, Trindade, Yusuf, Simma and Tomka.

Live from ICJ: Kosovo declaration of independence not in violation of international law, but the Court DOES NOT validate Kosovo independence!

2010-07-22T16:27:00.004+02:00

I'm at the ICJ right now with my iphone, so sorry for the typos.
The Court just finished delivering its advisory opinion on the Kosovo declaration of independence.
Having established jurisdiction, it Unsurprisingly adopted a very narrow reading of the question, considering that it was not asked:
1) to evaluate the legal consequences of declaration
2) whether Kosovo has actually obtained Statehood
3) whether the recognition by other States was legal
4) whether there is a general right under international law to declare independence or secession.
Therefore: the question is really whether the specific declaration was in accordance with international law (both general and specific)?

The Court found that in general international law, there is no prohibition of declarations of independence and that issues of territorial sovereignty or secession are not relevant within the strict boundaries of the question to be answered on the legality of the declaration.

Moving to the lex specialis of SC Res. 1244 and the Constitutional Framework, the Court considered that they were the international law basis for the authority of Kosovo institutions and the boundaries of their powers, at the time of the declaration of independence.

Moving to the interpretation of this applicable international law, it was meant at a temporary solution for the stabilisation of Kosovo.

Illogically, the Court then considers the author of the declaration BEFORE analysing whether the lex specialis contained a clear prohibition of declaration of independence. Here the judgment appears a little hazy (i'll have to to read the decision). The Court seems to consider the subjective perception of the authors of the declaration as not acting under the established legal framework. But whether you are bound by a legal framework doesn't depend on your subjective desire to be or not to be bound. It's an objective test. This is the whole point of ultra vires challenges! The Court in any case finds that the authors were just individuals, rather than the Kosovo Assembly! I'm not convinced at the reasoning at this point. If the French MPs meet in the French Parliament, to which they have access by virtue of their parliamentary Status, i think there is a presumption that they are acting in their official capacity.
Coming back to the contet of the lex specialis, the Court considered that it is silent as to the final Status of Kosovo, suggesting negotiation rather than requiring it, thus not explicitly excluding unilateral declarations. Moreover, a Resolution is only binding on its recipients, which don't include the authors of the declaration as
defined above.

All in all, not a surprising decision. The jurisdictional part and the framing of the question were to be expected. It also makes some interesting comments on the relationship between the various organs of the UN. The key point turned out to be the exact author of the declaration. The conclusion in itself is not that shocking, but the reasoning seems a little poor. In any case, as it stands, the Opinion isn't very useful. Basically, any group of random individuals can declare independence without violating international law... Fantastic...

[UPDATE: the press is characteristically getting it wrong, with for example, Le Monde's headline saying that the ICJ "validates Kosovo Independence", the BCC's headline being, in a slightly less inaccurate way that "Kosovo Independence not illegal", or CNN saying that "Kosovo Independence Legal"... Unsurprinsingly, Serbian websites are more accurate... ]

Is Chad really under an obligation to arrest Bashir?

2010-07-21T23:38:00.000+02:00

The news today has been filled with reports about the visit of President of Sudan, Omar Bashir, to Chad, and calls for Chad, which is a State Party to the ICC to arrest him. Beyond any discussion of the political opportunity of such an act, every commentary seems to take for granted that Chad is under a legal obligation to do so.

CNN has a "Court official" (probably OTP...) on the record saying that:

Chad is legally obliged to arrest Omar al-Bashir and hand him over to the International Criminal Court.

According to Human Rights Watch:

Chad should not flout its obligations to arrest al-Bashir if he enters Chad.

Same tune at Amnesty International:

If it were not to arrest him, Chad would violate its obligations under the Rome Statute of the International Criminal Court, which it ratified in November 2006.

I'm not sure that's actually true. Sure, the Statute, at Article 86 provides that (my emphasis):

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

However, "in accordance with the provisions of the Statute", there is in fact no automatic obligation to cooperate in relation to the execution of an arrest warrant. Indeed, Article 89 provides that the Court must make a request for cooperation to a State. The request must contain specific information outlined in Article 91 (such as a copy of the arrest warrant). Only then does the Statute provide (Article 89(1)) that (my emphasis):

States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

To my knowledge, there hasn't been such a request.

Second of all, even if the ICC had made a request for cooperation, the fact that Sudan is not a State Party can trigger the application of Article 98(1), according to which:

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.

It's arguable that Bashir, as an acting head of State, does benefit from diplomatic immunity, in application of the ICJ Arrest Warrant Case (for a discussion of the immunity question in the Bashir case, see here). If that were the case, not only would Chad not be under an obligation to cooperate, but the request itself would be contrary to the Statute.

So, all in all it's far less obvious than claimed, that Chad is in fact under an automatic obligation to arrest and surrender Bashir. Of course, in a week where the Prosecutor himself has publicly considered that the issuance of an arrest warrant is proof of guilt (See commentaries of this by William Schabas and Kevin John Heller), one stops being surprised by poor legal argumentation...

Partial retrial ordered in Haradinaj

2010-07-21T16:15:00.007+02:00

The ICTY Appeals Chamber just released its Judgment in the Haradinaj, Balaj and Brahimaj case. The Trial Chamber, in its April 2008 Judgment had acquitted the first two, and convicted the third for two counts of torture. The Appeals Chamber decided, with the President Judge Robinson dissenting, to partially quash the two acquittals and order a partial re-trial, because:

49. [...] the Trial Chamber failed to take sufficient steps to counter the witness intimidation that permeated the trial and, in particular, to facilitate the Prosecution’s requests to secure the testimony of Kabashi and the other witness. Given the potential importance of these witnesses to the Prosecution’s case, the Appeals Chamber finds that, in the context of this case [of systematic witness intimidation], the error undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.

Several comments about this decision.

For one, the basis for the motion by the Prosecutor was a "breach of the Prosecution's right to a fair trial". But since when does a Prosecutor have fair trial rights? He's an organ of the judicial system. Fair Trial rights exist to protect the defendants in their relation with the judiciary, not one organ of the judiciary against another organ of the judiciary. As Patrick Robinson puts it in his dissenting opinion:

17. By virtue of the burden placed on the Prosecution to prove the guilt of the accused person beyond reasonable doubt, the position of the Prosecution is in many ways different from the position of the accused person. Thus, the Prosecution has duties, which the Defence does not have, and the Defence has rights, which the Prosecution does not have. Properly analysed, the relationship between the Prosecution and Defence is not symmetrical; it is, because of the aforementioned burden, asymmetrical.

This is yet another example of a misapplication of human rights principles due to the decontextualisation of the reason of their existence and therefore a complete misunderstanding of their ethos and telos. In a similar fashion, the ICC Prosecutor had claimed a "right of appeal" when leave to appeal had been refused in the early witness participation decisions in the DRC situations. The Appeals Chamber at the time had rejected the motion.
It should be pointed out, however, that in the course of its reasoning, the Chamber does not really take up this idea of "prosecution fair trial rights". It does so once:

46. this decision again inappropriately prioritised logistical considerations over the Prosecution’s right to a fair trial.

[UPDATE: The Chamber issued on 23 July a corrigendum where it says that in paragraph 46, it meant to say "fairness of the proceedings" and that the mistake is due to a "clerical error". Blame it on the clerks... I'm sure that explains Tadic as well...]

but refers more generally to the "fairness of the proceedings", as illustrated by the above quoted passage. This is far less controversial, and shows that the issue could have been solved without opening the can of worms of Prosecution rights. And it therefore begs the question of why the Prosecution framed the question in this way in the first place. One worrying conclusion is that the OTP (and the Chamber when it picks up on it that one time) didn't see the semantic difference between "interests" (which the Prosecutor has), "rights" (which the Prosecutor doesn't have) and "the fairness of the proceedings" (as a general principle of good administration of justice). You would expect professional jurists to know that words have a meaning...

The Appeals Chamber missed an opportunity to explicitly reject the Prosecutor's reasoning. What it does here is a little more confusing, because it agrees with the Prosecutor, but doesn't clearly indicate that it is so doing on a different (and more accurate) reasoning, as you generally see in decisions. [Reading the judgment too fast the first time around, I actually got confused and, in the absence of a clear rejection of the OTP's reasoning, attributed the Prosecution argument to the Appeals Chamber. Thank you to my anonymous commentator for setting the record straight! And in my defense, the Chamber does refer to "Prosecution fair trial rights" once and Robinson himself must have considered the majority decision unclear, because he takes upon himself to clarify the situation.]

A problematic aspect is the standard of review. Given that the Trial Chamber was exercising a discretionary power, it has a certain leeway in its decision-making which in turn usually means that the Appeals Chamber only interferes when there is an obvious misuse of discretion. However, what the Appeals Chamber does here is substitute what it would have done if it had been the Trial Chamber. This is beyond the scope of the function of the Appeals Chamber, as highlighted in Judge Robinson's dissent:

7. The question of how many extensions to grant, whether one, two, or one hundred, or whether to stay or adjourn the proceedings, relates to the detailed day-to-day management of the case and is a matter best determined by the Trial Chamber in light of all the relevant circumstances. This is not a judgement for the Appeals Chamber to make. I would have granted more than three extensions or adjourned or stayed the proceedings, and the Majority itself might have done the same, but that is irrelevant. For it is not the appellate function to determine the sufficiency of the extensions granted by the Trial Chamber absent a clear indication of an abuse of the Trial Chamber’s discretion. And were we to do so, we would simply be substituting our own exercise of discretion for that of the Trial Chamber without any proper basis.

In effect, it appears from the Judgment that the Trial Chamber did in fact take into account the circumstances of the case and the importance of the witnesses by granting three consecutive extensions to the Prosecutor in order to allow him to secure witness testimony, so clearly, on the face of it, it did take into account relevant factors for the exercise of its discretion.
More generally, given the length of proceedings at the ICTY, the idea that the Prosecutor is not given enough time seems slightly puzzling. In this case, the indictments were issued in March 2005 (so presumably, the investigation had already been going on for a while), it took 2 years for the trial to begin in March 2007, and it lasted about 10 months, until January 2008. Even accounting for the specific difficulties of international investigations in difficult circumstances, you'd expect the Prosecutor to have had enough time to prepare a good case in that time and that its solidity would not depend on a last minute hiccup with a couple of witnesses... and even in this event, there comes a moment when it is legitimate for a Trial Chamber to move the proceedings forward in the interests of the defendants and in light of the right to be judged without undue delay. In the absence of proof of witness intimidation or tampering, at some reasonable point in time, the Defendant should not bear the consequences of the Prosecution's failure to secure sufficient evidence for a conviction.

A final general comment. Once again, we have a dissenting opinion which seems to make more sense than the majority decision. I'm not familiar enough with all the case-law of the tribunal to claim that dissenters always get it right, but my empirical experience is that I generally agree with the dissents (Schomburg on JCE, Pocar on reversal of acquitals). I think it might have to do with the fact that once a judge has taken the step towards dissent, he frees himself of the shackles of the internal politics of consensus which leads to sometimes inconsistently argued collective decisions, as illustrated in the present case, whereas dissenting opinions will have more chances of being intellectually consistent, and therefore make more sense. Any thoughts on that?

Another Fair Trial issue for today: Sljivancanin Appeals Judgment to be revised

2010-07-14T18:58:00.001+02:00

In one of the ongoing sagas of this blog, and on a day apparently dedicated to fair trial issues (see previous post), the Appeals Chamber of the ICTY issued a decision today granting the motion to review of the Appeals Judgment in the Slivancanin case. The Judgment had controversially added, with two judges dissenting, a new conviction for aiding and abetting murder as a violation of the laws and customs of war. As I commented in the past, a first request for review for initially rejected. However, Counsel made a new motion based on the existence of new evidence, which was heard early June. It is this new fact as defined by article 26 of the Statute that compels the Chamber to allow the possible revision of the Judgment.

The new fact, which is witness evidence that the accused did not in fact express the mens rea for the crime in a conversation, contrary to what had been found by the Appeals Chamber. In accepting this, the Chamber finds that (p. 4):

Although the Panic New Fact was discoverable through due diligence by Sljivančanin’s counsel, review of the Mrksic and Sljivančanin Appeal Judgement is necessary because the impact of the Panic New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice.

This is of course perfectly reasonable... but is a little ironic given the way the case unfolded. Indeed, the Trial Chamber had drawn no conclusion from the conversation between Mrksic and Sljivancanin under consideration. It was only the Appeals Chamber which inferred from the conversation that Mrkšić must have told Šljivančanin that he had withdrawn the “JNA” protection from the prisoners of war held at Ovčara, subsequently "relied on these findings to conclude that Sljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war" (p. 3). How could the defense be expected to provide evidence on an event that the Trial Chamber had not even found as being relevant? It is only with the Appeals Judgment, where the judges are basically reviewing evidence as if they were the trial chamber, that the Defense can actually know what evidence it has to contest. That's hardly compliant with fair trial rights!

The granting of the motion is obviously a step in the right direction for making sure those rights are respected, but it doesn't remedy the profound flaw of a process which allows the Appeals Chamber to de facto review evidence as a Trial Chamber would and reverse acquittals without any possible appeal from the new conviction in clear contradiction with human rights standards.

When is a "Fair Trial" really a "Fair Trial" ?

2010-07-14T17:14:00.000+02:00

Commenting on a recent decision by PTC I at the ICC, William Schabas invites comments on the powers of the Chamber in relation to media statements by members of the OTP. In a nuthsell:

The Chamber chastised Beatrice le Frapper du Hellen, who is a senior official in the Office of the Prosecutor, for remarks that she made in an interview with the lubangatrial.org blog.
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly, the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.'in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public's understanding of the trial), which tends to bring the Court into disrepute'. It said it would take no further action than to express 'the strongest disapproval of the content of this interview' but warned that 'if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible'.

And the problem as identified by Professor Schabas is as follows:

This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to 'take appropriate action' in the case of 'objectionable public statements'. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week's decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of 'intermediaries'. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to 'appropriate action' if I make an 'objectionable public statement'? I am inclined to think that it could stay the proceedings if a third party - such as myself - made an 'objectionable public statement' that drastically compromised the fairness of the trial itself, but that it can do no more than that.

On principle, I don't find it shocking that within its powers to ensure that fair trial requirements are met, a Chamber could exercise control over the conduct of the parties, in, and out of court. However, the key issue here, before dealing with the exact scope of that control, is what do we mean by "fair trial"? In my opinion, any conduct should affect "fair trial" in a strict procedural interpretation. For example, if the OTP was paying defense witnesses not to testify, or using intermediaries that provide false evidence.
This being said, in this decision, I believe they have much too broad an approach to the notion of "fair trial". Fair trial is to be evaluated within the proceedings, not outside. This is not a trial by jury, where the the members of the jury might be influenced by unbalanced press reports. The Judges at the ICC are professionals that in theory should not be affected by what a party might say in the press. The "public's understanding of the trial" is not a component of "fair trial". Indeed, whether the general public gets a correct picture of the proceedings (whatever that means... given that perceptions of a trial will always vary depending on the viewer's original bias) is none of the judges' business, even if from a broader perspective, one can only wish that fair reports of the trial be available to the public.

With this in mind, I don't see anything that affects the fair trial of Lubanga in the interview given. Of course the OTP is going to say that its witnesses are reliable, if not it wouldn't have chosen them in the first place. For similar reasons, it is not surprising that the OTP will express trust towards its intermediaries. It is the opposite that would be astonishing. And there's nothing shocking in the OTP expressing its belief that Lubanga is guilty, if not they wouldn't have initiated the case in the first place. Moreover, nothing in those statements undermine the power of the Chamber to effectively determine whether the the witnesses are reliable, the intermediaries trustworthy and Lubanga innocent or guilty. Each one is within his institutional role.
This doesn't mean that one cannot regret the rhetorical shortcuts adopted by OTP members, most notably Mr. Ocampo (recall when he compared Bashir reelection to Hitler's election...). These statements are certainly careless, inappropriate and possibly give a warped image of the ICC, but they are not strictly speaking fair trial issues. If made in Court, these statements could be questioned by the bench, based on basic principles of civility, rather than fair trial requirements. This is what happened in Sierra Leone where David Crane was chastised for referring to "Dante's inferno" and the "hounds of hell" in one of his opening statements.
As for third parties, given my strict approach to fair trial, I do not believe that the critical blog musings of William Schabas or myself could constitute a violation of fair trial requirements and therefore taken into account for a stay of proceedings. If not, all academic or NGO activity on an ongoing case should come to a stop until the verdict... More generally, given the global media exposure of these trials, having such a broad approach to fair trial as seems to be adopted by the Trial Chamber, would mean that no defendant in an international criminal court could be said to be able to get a fair trial because they are nearly always portrayed as guilty in the press, in clear violation of the presumption of innocence...

In relation to the exact powers of the Chamber if there is a violation of fair trial requirements, I don't think there is a general rule. It depends on the nature of the violation. For example, in the case of the intermediaries, I believe there is indeed a case to be made that the Chamber has power to order the OTP to provide the names, given its general powers in insuring disclosure of relevant materials for the adequate preparation of the defense case. For others conducts not covered by explicit powers of the Chambers, I think that the only power would indeed be a stay of proceedings until the conduct stops. Disciplinary measures could only be taken by the Chamber in the specific case of the offences against the administration of justice listed in Article 70 of the Statute. In other cases, another body, such as the Presidency or the ASP, would be competent to deal with orders and sanctions. As for statements, given my strict approach to fair trial, I think they would rarely constitute a violation of that right in the first place, but if they did, a stay of proceedings would equally be the only available tool for the Chamber.

Bashir and Genocide in Sudan: Second time lucky for the OTP

2010-07-13T18:35:00.000+02:00

Yesterday, Pre-Trial Chamber I issued a second decision on the prosecution's application for an arrest warrant against Omar Al Bashir for charges of genocide. This decision follows the March 2009 decision by PTC I, which had initially rejected the genocide charges, and the February 2010 Appeals Chamber judgment overturning the decision, because the wrong standard of proof had been applied. In effect, the first PTC I decision had considered that genocidal intent had to be the only reasonable conclusion. The AC held that this was too stringent a standard at this stage of the proceedings, and that the OTP only needs to show that genocidal intent is one reasonable conclusion.

Given this state of affairs, it is not surprising that PTC I amended its original decision to include three charges of genocide, which are to be the subject of a separate warrant of arrest. As I had argued back in February, I think that this is the correct standard to be applied at this stage of the proceedings, so there is nothing much to add on the decision itself. I would nonetheless like to raise one point before I consider other issues: the binding effect of Appeal Chamber decisions. Indeed, the PTC considers that:

1. It must be established at the outset that the key findings of the Appeals Decision [sic] are binding on the Chamber in this case and determine the scope of the present decision.

Stare decisis makes sense as a rule of thumb, but I couldn't find it anywhere in the Statute or the RPE (it was a cursory reading, so please correct me if I missed it). Also, the PTC gives no source for its statement, when it is usual for it to refer to the relevant provisions of the Statute. So I wonder whether there is in fact a rule of binding precedent at the ICC and what would be the consequences of its absence if a PTC were to systematically decide not to follow a debatable AC interpretation of the Statute.

Beyond this, the decision touches upon some other broader considerations, which have been raised elsewhere.

For one I agree with William Schabas, that the Prosecutor will still need to prove genocide during trial (if it ever takes place) and the case-law of the ICTY shows how hard that can turn out to be. More generally, this over-reliance on genocide as a political tool is problematic, and in my view also counter-productive. Regular readers of this blog will already know my criticism of the haphazard use of the "genocide label" and the fact that I actually call (with little chance of success) for the removal of genocide as an international crime.

I also agree with Dapo Akande, that the Court is systematically not dealing with the issue of Head of State immunity, given the fact that Sudan is not a State party. His way to deal with that is to apply the reading of the Genocide Convention done by the ICJ in the Genocide Case, according to which a party to the Convention would have an obligation which would call for State Parties of the ICC to cooperate with the ICC in Bashir's arrest, as an international court dealing with Genocide the jurisdiction of which they have accepted, as provided by Article VI of the Convention, and this would apply irrespective of immunities which are explicitly removed by article IV of the Convention.

I'm personally a little weary of all those "new" elements being read into the genocide convention over the years (like the claim that it gives rise to State responsibility for genocide...). More specifically, I would say that given that the Convention does not enact universal jurisdiction, the obligation to cooperate with an international tribunal can only rest on a State which actually has a duty to prosecute under the Convention, i.e, the territorial State. In any case, I think this reasoning cannot be applied to non-State parties to the ICC, given that they won't have accepted the jurisdiction of the Court.

The question of immunity is just one of many that arise from the application of the Security Council referral to a non-State party. I remain convinced that the whole mechanism, which basically gives power to the Security Council to make a treaty binding on a State which is not a party to it, is contrary to international law... but I fear that in this case, just as when I argue for the end of genocide as an international crime, I am fighting a already lost war...

The Lubanga Trial is stayed, the slapstick comedy continues... but isn't the joke wearing a little thin?

2010-07-09T10:30:00.000+02:00

Yesterday, Trial Chamber I of the International Criminal Court ordered another stay of proceedings in the Lubanga case because the Prosecutor is consistently refusing to apply orders made by the Court to disclose to the Defense the identity of an victims intermediary, following claims of misconduct. The Chamber had found that there was no security risk for the intermediary in the event of a partial disclosure to selected persons, confirmed by the Victims and Witnesses Unit. Despite this, the Prosecutor argued that:

The Prosecution is sensitive to its obligation to comply with the Chamber's instructions. However, it also has an independent statutory obligation to protect persons put at risk on account of the Prosecution's actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk. The Prosecutor accordingly has made a determination that the Prosecution would rather face adverse consequences in its litigation than expose a person to risk on account of prior interaction with this Office. This is not a challenge to the authority of the Chamber, it is instead a reflection of the Prosecution's own legal duty under the Statute.

To which the Chamber answered:

27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings. It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 68(4) of the Statute); their nature; and whether they are consistent with the accused's right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.

28. The Prosecutor has chosen to prosecute this accused. In the Chamber's judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court's orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.

As a consequence:

31. Therefore, the Prosecutor has elected to act unilaterally in the present circumstances, and he declines to be "checked" by the Chamber. In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the Court because of the material non-compliance with the Chamber's orders of 7 July 2010, and more generally, because of the Prosecutor's clearly evinced intention not to implement the Chamber's orders that are made in an Article 68 context, if he considers they conflict with his interpretation of the prosecution's other obligations. Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.

This is not the first time that the proceedings are slowed down due to prosecutorial delay. Some years ago, he had failed to disclose evidence obtained through the UN, which had led to a stay of proceedings, and even a decision on the release of Lubanga (which was of course overturned on appeal). The Prosecutor had grudgingly complied with the order at the time, but this time clearly claims that he would be under a Statutory obligation not to comply.
The Chamber's irritation with the Prosecutor is apparently reaching new levels, and it is interesting that it evokes the possibility of applying Article 71 of the Statute, which provides that

"the Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence."

The possible sanction, according to the RPE (rule 171), are up to 30 days of removal from the proceedings and even, if the person is an official of the Court, up to 30 days of interdiction of exercising their function before the Court. In the unlikely event that the Chamber did apply this to Mr. Ocampo, he could swap stories with Garzon on the scandalous limitations to judicial independence for those untiring defenders of universal rights... But it would be unfair to put all the blame on the Prosecutor for the delays in the Lubanga Trial. The judges, with the Requalification of Charges fiasco, also have contributed to turning this first ICC Trial in a textbook case of poor judicial management.

Indeed, beyond this case, is highlighted once again the difficult interaction between the Prosecutor and the Chambers, and the continuing struggle for "power" over the proceedings, which has not failed to come up at every step of the proceedings, whether at the pre-investigative phase, when the PTCs tried to force OTP decisions in CAR and Sudan, in the investigative phase, with the issue of victim participation, in the case selection, with the prosecution wrestling full control over gravity from spineless chambers, and now in the trial phase. It's difficult to know if the problem is structural (multiplying institutions with more, and therefore conflicting powers), or personal, due to the particular approach adopted by the OTP. But if it does last, it can only end badly, for the defendants, for victims, for the long-term legitimacy of the Court, and ultimately for the credibility of international justice...

Palestine and the ICC (follow-up): asking the right question and giving the wrong answer

2010-07-05T11:46:00.002+02:00

Following our (really long) online debate some months back (see here and here), Michael Kearney has published another opinion on the declaration of the PA under article 12(3) of the Rome Statute. It very clearly highlights the different approaches to Palestinian Statehood and argues (along with Alain Pellet, who issued his own opinion on this) that a functional approach should be adopted to allow the declaration of the PA under 12(3). The paper might be called "asking the right question", but I fear once again that it's not giving the right answers...
I won't redo all the debate again, but I have two nagging questions that remain unanswered for me in this reasoning.

1) One argument is that the PA has criminal jurisdiction over the crimes, so it can transfer the jurisdiction. But how is material jurisdiction over the crimes relevant for 12(3)? This provision follows 12(2) which provides that:

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.

There is no mention of material jurisdiction here. It's territory and nationality. Criminal jurisdiction over the crime is actually not a criteria under article 12 which is not a question of transfer of jurisdiction, but acceptance of jurisdiction in relation to territory and nationality. If not this would have two strange consequences 1) let's imagine a State where a certain war crime was committed but where the prosecution of such a crime would not be possible under its national criminal code. It could still become a Party or make a 12(3) declaration. Making criminal jurisdiction an extra criteria under 12 would mean that the ICC could only prosecute crimes in States which have themselves provided for the prosecution of the crime. Hardly the will of the drafters... 2) at the other extreme, it would mean that any State having implemented universal jurisdiction could make a 12(3) declaration. Criminal jurisdiction is only relevant when it comes to complementarity and whoever claims that it is relevant for article 12 needs to show me through what magic the two criteria of 12(2) (territory and nationality) suddenly became three...

2) A simple question: would you agree that the phrasing of the provision which talks about a "State which is not a Party to this Statute", implies that an entity that can make a declaration under 12(3) is also an entity that can actually sign the Rome Statute? I personally don't see any other interpretation of 12(3), and in that case, it begs the further question: if you're supporting the PA's declaration, why not support its signature of the Statute? That would certainly send a strong message to the international community and force the ASP to come up with a clear answer as to what is a "State" for the meaning of the Rome Statute.

I look forward to some answers!

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

2010-06-29T18:46:00.003+02:00

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

2010-06-20T18:21:00.002+02:00

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

2010-06-16T23:37:00.001+02:00

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

2010-06-15T23:12:00.000+02:00

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

2010-06-03T16:58:00.001+02:00

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

2010-06-03T16:57:00.001+02:00

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...

The Football World Cup and the ICC Bashir Arrest Warrant: what's the link?

2010-05-30T01:35:00.000+02:00

The last place where you would expect to read about the ICC would be in relation to football. However, according to news reports,

South Africa invited Sudan's Omar al-Bashir to the World Cup along with the rest of Africa's leadership, but would arrest him should he take up the invitation, President Jacob Zuma said.
Bashir is wanted by the International Criminal Court on charges of war crimes. He rejected the charges of having ordered mass murder, rape and torture in western Darfur.
Zuma said in response to a question in Parliament that the country had a responsibility to arrest him should he accept the invitation and attend the June 11 opening ceremony.
"South Africa respects the international law and... we abide by the law," he said.

Last week, a debate was sparked in some countries (Kenya for example) on attending his swearing-in ceremony (The US did send a junior diplomat, but claim it doesn't mean anything). After last year's AU declaration calling for not cooperating with the Court, these recent event show the actual ambiguity of African leadership towards the warrant. I wonder how long this will last. Not that I believe that all foreign policy should always be consistent, but inviting someone while telling him he'll be arrested if he accepts is pushing diplomatic schizophrenia a little far...

Scoop: The ICC informs the Security Council of Sudan's lack of Cooperation

2010-05-27T18:55:00.001+02:00

Pre-Trial Chamber I issued a decision this week informing the Security Council on the lack of Cooperation from Sudan in the Harun and Ali Kushayb case. In itself, it's not a surprising decision, given Sudan's stated refusal to cooperate with the Court, although one can hardly imagine that the Security Council didn't know already, given that the Prosecutor himself, in his yearly reports to the UNSC, has repeatedly complained of Sudan's lack of cooperation.

The decision is however debatable in many ways. Others have already pointed out some of the problems. I agree with Professor Sluiter that it is problematic that Sudan wasn't heard in the proceedings, which doesn't give a very good image of the process, especially given the absence of a right of appeal. Also, the presentation of the reasoning is indeed quite enigmatic. But I do find the criticism of the "French style" of drafting a little unfair. The French, unfortunately, do not have the monopoly of poor and unclear reasoning, and it is possible to refer to countless "common law style" decisions that are equally enigmatic... I also agree with Professor Schabas in his criticism of the more than doubtful use of the concept of "inherent powers", with the sole reference to Blaskic, given the ambition of the drafters to explicitly avoid this kind of reasoning.

In addition to the previous comments, I would like to add a few words on the main reason why this decision is so unsatisfactory, which brings us back, beyond the poor legal reasoning of judges, and as is often the case, to the poor drafting of the Statute itself.

Cooperation of States is generally covered by Article 87 of the Statute. It lays down the procedure to be followed by the Court in presenting requests for cooperation. However, it deals mostly with State parties. In this sense, the obligation to hear Sudan, if politically desirable, was not in fact a legal requirement under the Statute and Regulation 109 of the Court, as suggested by Professor Sluiter, because the latter regulation refers explicitly to Article 87(7), which applies to non-compliance by State parties only.

In relation to non-State parties, one has to look at article 87(5), which reads as follows:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

As we can see, it seems difficult to apply this provision to Sudan. For one, under sub-paragraph (a), given that Sudan has neither done an ad hoc arrangement or an agreement, the legal basis for a request for cooperation can only be the "any appropriate basis", in which one could easily put the Security Council Chapter VII referral resolution which explicitly called on Sudan to cooperate with the Court.
But what about the possibility under consideration here, that is to notify the Security Council of non-compliance? This is where the problem arises: subparagraph (b) only refers to this possibility for non-State Parties that have entered into an agreement with the Court, which is clearly not Sudan's case. Which means that in fact a literal application of the Statute prevents the Court from notifying the Security Council of the non-cooperation of a non-State Party.
This is a terrible oversight in the drafting process. Once the drafters had allowed the Security Council to refer a situation in a non-State party, the logical consequence should have been to allow the Court to make a notification of non-compliance like with any other State and Article 87(5)(b) should have provided for that kind of event. The judges wouldn't have had to resort to flimsy argumentation if the drafters had done their homework.

This being said, with this drafting anomaly in mind, the judges could have still done a better work. For example, if one accepts that a Security Council Resolution is an "appropriate basis" under 87(5)(a) and that 87(5)(b) is logically meant to apply to situations covered by 87(5)(a), then the theory of the useful effect (effet utile) could allow the judges to read the "appropriate basis" part in 87(5)(b) and therefore permit a notification to the Security Council. Of course, it's not perfect, but it would at least give a statutory basis to the procedure, avoiding the more debatable reference to "inherent powers".

Finally, this poses the question, once again, of the opportunity of the Security Council referral mechanism as it was set up, especially when it allows a situation in a non-State party to be brought before the Court. I've expressed my skepticism before on this issue, more particularly on the alleged power given to the Security Council to effectively make a State comply with the provisions of a treaty that it didn't sign. You can call it my "French style" approach to international law, but this has always seemed to me to be contrary to basic principles of international law...

Mladic to be declared dead by Serb authorities?

2010-05-26T16:48:00.001+02:00

The family of Ratko Mladic, world famous fugitive from the ICTY, has asked a Serbian court to declare him dead because he's been unheard of for seven years. According to the news story:

Under Serbian law, a person can be declared if they are over 70 years old and there has been no information about them for five years. However, Mladic is only 68, so the family will have to prove that "he disappeared under such circumstances that make it probable that he is no longer alive."

This is not an exceptional law, which exists in many countries, such as France. Technically, a Serbian court's decision is unlikely to have any direct impact on ICTY proceedings, but it would be kind of weird Kafkaian situation that an international court pursue the arrest and prosecution of an individual declared legally dead by another court...
This is the second time this month that the ICTY might have to deal with a dead defendant, with Delic's heart attack with his appeal pending. In relation to that, we are still waiting for a decision by the ICTY on the fate of the proceedings. I suppose there's no rush, no that he's dead...

New book from French General on France and Rwanda in the never-ending "complicity debate"

2010-05-26T13:47:00.000+02:00

Ever since I've started doing ICL, I've been in endless debates about France's role in Rwanda and accusations of complicity of Genocide. I won't go into the details of the debate, but would like to focus on one aspect of it that has come up time and again: the Turquoise UN operation in the summer of 1994 that was led by France. Indeed, the accusation is that France went in to protect the genocidaires and that they even committed atrocities themselves, such as doing some South-American style throwing people out of helicopters. In response to these accusations, the General in charge of the operation, Jean-Claude Lafourcade, just published a book on his experience in Rwanda. He makes some interesting points which I'd like to bring to the discussion.

1) Although it seems obvious, he reminds us that Turquoise in not a French military operation, it's a UN Chapter VII operation, which was approved, if grudgingly, by the US. Also, he points out that the US refused to provide logistical support for transport of troops and that the French troops had to use old soviet planes provided by Ukraine. In addition, he finds some fault in the conduct of the UN, through Romeo Dallaire, which he considers to have not been given sufficient means to act immediately and for being partial towards Kagame.
2) He also reminds us that the Hutu interim government was recognized as the legitimate Rwandan government until mid-July by the UN, which is quite interesting when singling out France for its "support" for the Hutus. In relation to that he recalls that the last French troops left Rwanda in December 1993, so were not present when the genocide started.
3) The general presents in a very clear way the difficulties of intervening in an ongoing conflict. The idea was to be seen as impartial, despite the hostility of the FPR and also of the Rwandan army, once they had realized that the objective of Turquoise was not to maintain them in power.
4) specifically in relation to the genocidaires among the population and the refugees, he acknowledges the difficulties in deciding what to do. For one, the UN Mandate did not include the arrest of war criminals, and he regrets that this was not the case. Second of all, he asks the question of what he he should have done with the refugees, women and children, that were fleeing the advance of the FPR and the accounts of violence against the civilian population, in retaliation for the genocide? Should he have not helped them because there were genocidaires among them? He also points out that Turquoise did not promote the fleeing of the Hutus to the DRC. On the contrary, they tried to set up "safe zones" of humanitarian aid within Rwanda, but that it was the insistance of Kagame to refuse a cease fire that pushed the refugees over the border, justifying the later military operations in eastern Congo that continue, to this day, to destabilise the whole region.
5) In relation to the previous point, Lafourcade insists on the ambiguity of Kagame's conduct. Officially, he criticized France for helping the genocidaires leave the country, while refusing a cease-fire that would have greatly stopped the flow of refugees. On this, he wonders why the FPR assault stopped at the end of April, only to start again, despite the certainty of victory, only when the Turquoise operation started.
6) Interestingly, he points out that it is Turquoise that decided to scramble the radio des mille collines.
7) Finally, the book concludes on some thoughts about the accusations of complicity of genocide. He wonders how come none of the 200 accredited journalists ever denounced alleged misconduct by French troups at the time. He calls for some court decision to be reached impartially on this (there is an ongoing case in France, but it has reached a stalemate for lack of evidence). On the position of the French authorities, he wishes that they would take a clear stand: either acknowledge French involvement in the Genocide if the evidence exists, or clearly denounce the accusations if they are not true. He regrets the actual ambiguity of the political discourse.

Of course, you wouldn't expect a French general to say otherwise, but I think it's interesting to have his account of what happened in the summer of 1994. Personally, I've never bought the complicity of genocide accusation specifically leveled at France. France made a choice in the late-eighties/early-nineties to promote change from the inside and support the Habyarimana regime (with some results, including the first multi-party elections, which, in fact allowed the extremists to be more present in government, as is often the case), whereas Belgian and the US chose the Tutsi rebels supported by Uganda (a rebel army that was trying to overthrow a government legally recognized by the UN until the month of July 1994...). It's a foreign policy choice that can be challenged, but it hardly amounts to complicity of genocide. When you see the people leveling the accusations (an "independent" Rwandan commission among others...), it's hard to give them much credit. Let's have a court decision, in any country, or the ICJ, and settle this.
I perfectly agree with Lafourcade on the actual ambiguity of the French authorities. Either come out and clearly acknowledge wrongdoing, or clearly defend the honor of France, which is accused of the worst of crimes. The weak-kneed middle ground of Sarkozy's visit to Rwanda earlier this year was in that respect very puzzling. I don't understand what kind of guilt-trip can push the President of France to be shown "proof" of French involvement in a genocide at a museum, and not say a word. Once again, either France was involved, and let's have a formal apology from State authorities, or France wasn't, and it is France who should sever diplomatic ties with Rwanda as a point of principle. Anyway, Rwanda doesn't really care about France in any case, with it's anglophone and sinophile turn...

More generally, I remain baffled at the leeway given to Kagame. As I've had the opportunity of saying before, the genocide should not prevent us from critically assessing the conduct of Kagame, before and including during the 1994 civil war, and in the destabilization of the region since, with help from Museveni, another leader who incredibly remains in the good books of the international community, even being rewarded with the ICC review conference this month, despite his country being under investigation... but that's another issue and I expect that I'll post about it in coming weeks...

Texas-style Education: the UN and Secularism put in doubt

2010-05-24T15:20:00.001+02:00

I take a break for a few days and many stories worthy of attention start appearing, including the decision of the Cambodia Chambers on JCE III (see here and here) and the Kononov ECHR decision on war crimes and the principle of legality. I'll comment on them later, but I also saw this news story about the Texas Board of Education changing its syllabus to invite students to question the separation of Church and State, and to teach them that the UN could be dangerous to American freedom. Apparently, it's quite worrying because Texas is quite influential in imposing standards to textbook writers across the countries. Last year, the Texas board of education had already approved language that left the door open for teachers to slip in creationism in the classroom...

Here's what one board member had to say on the first issue of secularism:

Board member Cynthia Dunbar, R-Richmond, another social conservative, opened Friday’s board meeting with an invocation that referred to the U.S. and its history as a “Christian land governed by Christian principles.”
“I believe no one can read the history of our country without realizing that the Good Book and the spirit of the Savior have from the beginning been our guiding geniuses,” she said.

Once again, christian conservatives find themselves in agreement with portions of the muslim community that go against principles of secularism and for example argue that blasphemy should be banned because it would contradict the right to exercise religion freely, as suggested at the UN Human Rights Council, as I had discussed in a post last year...

Follow up: Garzon suspended

2010-05-14T17:47:00.003+02:00

Apparently, the judge in charge of handling the charges against Garzon has ordered his trial to begin. This has triggered an emergency meeting by the General Council of the Judiciary who decided unanimously to suspend him. It seems that he therefore will not be able to go to the ICC. I'm not sure how a national suspension affects the ICC's capacity to hire or not someone, but that appears to be the situation right now.

Once again this decision has triggered some hyperbolic responses. According to a prosecutor at the Audienca National, his suspension would "put an end to the principle of universal justice". Not universal jurisdiction, universal justice! For another commentator, his suspension would be catastrophic because he "symbolises international justice for citizens around the world".

I'd like to stress that my position is not to defend the 1977 Amnesty law, or impunity for war crimes around the world, but just to bring some measure to the debate and define more clearly its parameters.

This being said, I remain astonished at how this situation is being considered. Like I said in a previous post, everybody seems to forget that Garzon was "just" a Spanish judge, not some super world prosecutor. He has a choice to quit and become an activist or go work for the ICC. But right now he is still a agent of the Spanish Judiciary and is bound by Spanish laws and accountable to his hierarchy. Once again, it is surprising to me at how little consideration and benefit of the doubt is given to the Spanish legal system.

Also, from a point of view of perceptions of Garzon as the symbol of "universal justice", one has to question the foundations of the created belief in the first place. The human rights community created this symbol forgetting the national function of Garzon. He is an important element in the development of a general framework to fight impunity, but in no way does the future of "universal justice" depend on him.

On a related point, the human rights narrative functions on this idea of a threatened and fragile human rights minority under the threat of the rest of the world. That is just not true anymore. The unanimity of the support for Garzon shows that. Of course there is still enormous progress to be made in the protection of human rights in the world, but the importance of the human rights movement and its impact, both in influencing countries and in international negotiations, such as the ICC, makes the "besieged discourse" far less convincing. The need to create outrage is understandable to obtain results, but this systematic hyberbolic discourse of repression seems to me to be slightly counter-productive on the long run, when you see the enormous advance of human rights in the last 20 years.

Discourse creates expectations, and if you create too high expectations, they will obviously be disappointed. This could be the starting point of a general discussion of international justice in general, but let's keep this for another time...

You read it first on Spreading the Jam: Garzon at the ICC

2010-05-12T12:17:00.001+02:00

Well, he's not exactly the new prosecutor yet, as I predicted some weeks back, but he is getting closer to an institution that fits better his "world approach" to justice. Garzon has asked to be transferred to the ICC for seven months as a "consultant" for Prosecutor Ocampo. Not only is it not necessarily a good idea for the ICC to hire such a polarizing figure, but more importantly, should the ICC really be hiring someone who is under 3 investigations for judicial misconduct in his home country? The charges might seem "political", but to the last of my knowledge, Spain is a European democracy (with some problems, but still, don't we all have them?), not some third world dictatorship. I'm a little puzzled at how easily the proceedings are being dismissed as "merely" political. It is the same judicial system that allowed Garzon to operate for so many years on his progressive approach to universal jurisdiction. Or maybe i'm just naive... In any case, I really don't think it looks good for the ICC to take sides on this one (which it will clearly be doing, even indirectly, by letting Garzon work for it).

Krstic gets attacked in a British Prison: new wounds show that old ones still open...

2010-05-08T15:26:00.001+02:00

Radislav Krstic, the Bosnian-Serb General found guilty of complicity for genocide for Srebrenica was attacked in the high security British prison where he is carrying out his sentence. Apparently, the attack was conducted by three muslim detainees in retaliation for his war-time conduct. This of course raises serious questions on the conditions of detention and the incompetence of the British prison authorities.

It also raises questions on some of the more politico-philosophical issues surrounding international justice. One of the main arguments of the proponents of this form of mechanism to deal with past atrocities is that it fosters reconciliation. This is just one case, but it's hard to see reconciliation happening when throats are being cut open. More generally, someone at the ISA conference in February (can't seem to find the reference right now) was presenting figures of an opinion poll that showed that a majority of serbs still don't think that something happened in Srebrenica (the bodies were in fact dummies, goes one version...) and those who do believe to a large majority that is was a legitimate war reprisal between combatants. Hardly a sign, once again, that things are moving forward.

More fundamentally, this event, three british muslims attempting to kill a Bosnian-Serb general for the massacre of bosnian muslims, shows the difficulty of defining the right framework for analysing international justice and its consequences. There are clashing logics in the narratives of international justice. Indeed, the initial logic of international justice is that certain crimes are such that they affect the international community as a whole and therefore warrant 1) to be qualified as international crimes and 2) be prosecuted before an international court. Tadic was a prime example of this kind of reasoning. More recently, with the transitional justice movement, discussions of reconciliation have attempted to "relocate" international justice within the national setting. But that is not entirely possible anymore because we have, through the cross-border universalisation of values and the setting of international justice within a "global community" logic, paradoxically weakened the relevancy of the local political entity, thus making the local impact less effective. In effect, by internationalising justice we have contributed to the internationalisation of the conflict itself, as the Krstic attack shows...

This is only a tentative reflexion on the articulation between the local and the international from a political and legal theory perspective (what legal order are we talking about? what social contract?) but I remain surprised at how little academic thought within the ICL community goes into the analysis of these general systemic questions. It might seem unimportant on the short term ("as long as justice is done somewhere..."), but the long-term consistency of the system depends on it.

Future of Appeal of Dead Defendant at the ICTY (and a footnote on Garzon)

2010-04-24T17:26:00.001+02:00

Last friday, Rasim Delic, a former Bosnia Army General, died while awaiting the result of his appeal against his three year conviction for war crimes. It has to be a relief the the tribunal that he was provisionally released and that he has not joined the list of defendants that died in the UN detention center.

His death raises interesting questions because apparently, he is the first defendant to die during the appellate phase. I must say I'm not too sure what to think about what should happen to the proceedings and wanted to throw some random thoughts out there for your consideration.

One argument is to say, as when other defendants died, that the proceedings should cease. That would be an open and shut case. But somehow, I feel, without being exactly able to argue my point yet, that the situation is different on appeal. Before the Trial Judgment, if the proceedings are stopped, the presumption of innocence means that the person dies innocent. There has been no consequence of the ongoing proceedings because, legally, it is as if they had never started. On appeal, the presumption of innocence doesn't work anymore (or does it?) and he would die guilty if the proceedings were to stop before the issuance of the appeals judgment. That somehow does not feel right.
One has to keep in mind the hybrid nature of the appellate process in international criminal courts. In most national systems, an appeal is basically a new trial and the appellate procedure suspends the sentence of the first instance tribunal. Afterwards there is usually a third degree of jurisdiction which only determines whether the lower courts have made a mistake of law, and the procedure is not suspensive. At the ICTY, the Appeals Chamber fulfills both functions. It is a judge of law, mostly, but also of fact, without there being a new trial per se (which leads to the weird procedure whereby the Appeals Chamber can overturn a finding of innocence or increase the sentence, without any chance of appeal, which I personally find disturbing, as I've already argued, but that's a different issue). Interestingly, the Appellate procedure does not suspend the sentence.

With all this in mind, there are, in my opinion two approaches.
1) I would prefer that the appeal judgment be rendered. What is in the dock at this stage is the Trial Judgment, not the defendant anymore. I think it is in the interests of the good administration of justice that we know whether the trial chamber got it right. Especially as, from what I've seen on the website, all the appellate hearings seem to have been concluded, so the rights of everybody to be heard have been respected.
2) If the proceedings are called to an end, there remains the question of what to do with the Trial Judgment. In order to respect the presumption of innocence, I think the trial judgment should be quashed for reasons of equity.

Whatever the judges decide, the worst would be for them, faced with this novel situation in international criminal proceedings and because it is likely to happen again, to issue an unsubstantiated order that would give no indication on their reasoning.

Footnote on Garzon:
Thank you for your reactions to my thoughts on the Garzon proceedings. I wanted to add a small point, although it doesn't fundamentally change my general views on the whole situation and on the way people have reacted to it.
It appears, and I've had difficulty in finding precise information, not being a Spanish speaker, that the investigation was stopped in 2008 following a court decision. If that is the case, I do think that Garzon has a strong defense in the current proceedings. Indeed, if Garzon initiated an investigation and then went before a judge to confirm it, failed to obtain that confirmation and then stopped the proceedings, I don't see where the abuse of power would be constituted. The normal procedure seems to have been followed. It happens daily in every system where a prosecutor or investigative judge builds up a case and then is told that he got it wrong by a court. If that is an abuse of power, then every national prosecutor would be facing such charges at one point in their career. That's just how the system works.
Of course, at this stage, this is just speculation, as I can't seem to get hold of the alleged 2008 decision or its content. If anybody has it, I'd be happy to read it.

Some thoughts on the Garzon lovefest: next step the ICC?

2010-04-21T17:48:00.002+02:00

In recent weeks, the media and the human rights community have concerned themselves with the case against well-known Spanish judge Baltasar Garzon, famous among other things for initiating proceedings against former Chilean President Augusto Pinochet. I've mostly read expressions of support for the Judge, but they generally confuse the different issues under consideration.

Apparently, what Garzon is being prosecuted for is for having initiated an investigation into disappearances that occurred during the Spanish Civil War and the Franco era, therefore exceeding his jurisdiction because of a 1977 Spanish Amnesty Law covering these crimes. This situation raises several questions.

The first one, that all have put forward, is the validity of the amnesty in relation to international law. More specifically, are national amnesties for international crimes, more particularly crimes against humanity, contrary to international law? A lot has been written on this issue and this is not the place to answer the question. I have written an article expanding on the different aspects to be considered. In a nutshell, I don't think this is a relevant question in the context of the Spanish national system. IF, and I insist, IF, amnesties for crimes against humanity are deemed contrary to international law, the main consequence is that thet won't be recognised by another State's courts, or by international tribunals. It does not mean that they are not applicable in the legal system of the country that adopted them, in our case, Spain (and as an aside comment, anybody who has actually read the decisions on amnesties issued by the SCSL should be weary in referring to them, given their obscure drafting and debatable legal reasoning…).

More importantly, the international illegality is irrelevant in the national setting in relation to the specific procedure that undoubtedly exists to challenge the legality of a norm. Even if the amnesty is illegal under Spanish law, whose role is it to contest this amnesty? In most of the reports I've read, commentators seem to forget that Garzon is not an investigative judge of the world community, he is an investigative judge of Spain, and is an agent of its judicial system. Some have argued that the current proceedings run counter to judicial independence. But judicial independence does not mean unaccountability. A Spanish investigative judge cannot act beyond the scope of the jurisdiction of Spanish law and go beyond the powers vested into him by Spanish Law. It is not his role to contest this law. If Human Rights organisations, or victims' groups want to file a complaint in national courts opposing the legality of the 1977 Amnesty, fair enough, it is their role, not that of an investigative judge.

Another point that is highlighted in most commentaries, is the fact that "The charges were brought by two far-right groups who fear an open investigation of the Franco-era record" (NY Times Editorial) and that "allowing politically motivated groups to use the courts to intimidate magistrates and pre-empt investigations into past injustices appears to be a step backwards for human rights". Of course I don't have any sympathy for the far-right Francoist groups who brought the allegations before the court, but I find this remark a little disingenuous, or at the very least, naive. Courts are open to everybody, irrespective of whether one likes the person or group. When Amnesty International or Human Rights Watch file Amicus Curiae before national or international courts in favor of a certain position, they also are "politically motivated" (this would require some discussion on the useful but illusory narrative that human rights are "apolitical"...). They are also trying to "intimidate" dictators into not committing war crimes. Everybody has an agenda, and I refuse to deny legal standing based on my personal ethical evaluation of the ideological content of an organisation.

Finally, many have pointed out that Spain must face its past in order to move forward. Probably. But once again, how is that relevant to evaluating whether Judge Garzon has gone beyond his mandate in the existing legal setting? If that is his fight, he should quit and join activist groups that rightly call for more accountability for the Franco-era crimes. If he takes the risk of working on the fringes of legality, as an agent of the judicial system, he must bear the consequences of his actions.

In summary:

1) Yes, amnesties for crimes against humanity might be contrary to international law, 2) yes, one can argue that Spain's amnesty law prevents the country from facing its past, but 3) Garzon is not a human rights body (such as the Inter-american court of human rights) whose function is to evaluate these issues, 4) Garzon is not a political leader or human rights activist whose function is to promote change, 5) he is an investigative judge of the system, whose function is to investigate within the existing legal framework, and thefore 6) if he goes beyond his function, whatever the valid moral reasons to do so, he should bear the consequences and 7) if he's not happy with the existing legal framework, he should quit.

However much Garzon and his supporters have wanted to portray him as a world crusader against impunity, functionally, he is "only" a Spanish investigative judge. If he wants to campaign against amnesties in the international legal order (a perfectly legitimate goal), he should leave and continue his campaign as an international activist. Personally, and I know that might seem a little far fetched, I see some parallels between Garzon and Ocampo in portraying themselves as lone crusaders against the forces of evil. It must be an Hispanic cultural trait that could be called the Don Quichotte Complex, but that could be the topic of another post.With all this in mind, I'll take a side bet on the Garzon affair paving the way for him replacing Moreno Ocampo at the ICC. He would fit the bill perfectly in terms of experience and he would not be hindered by petty considerations of respecting national rules on sovereignty, amnesties or immunities.... Any thoughts on that?

ICC and Kenya: questions of prosecutorial communication

2010-04-08T12:24:00.007+02:00

I've posted an extensive legal comment on the Invisible Blog on last week's decision at the ICC to allow the commencement of a formal investigation in Kenya. But important in these matters is also the question of communication and how the Court is perceived by various communities who have an interest in the functioning of the Court. As I mentioned in a previous post, I don't believe that the Court focusing on Africa is a sign of its neo-colonialist nature. But the fact remains that perceptions, whether right or wrong, are fundamental, especially for an institution that relies so heavily on governmental and non-governmental cooperation for its daily operation.
In this context, it is interesting to look at the press conference held by the Prosecutor the day after the decision. Mr. Ocampo has once again shown his capacity to express himself in a clear and synthetic way, with strong Orwellian statements aimed at striking our hearts and minds. Here's one example:

The judges decided. There will be justice in Kenya. To contribute to the prevention of crimes during the next election we must proceed promptly. We will. There is a list of 20 suspects, but it is not binding. We envision at least two cases against one to three persons in each case. We will focus on those most responsible according to the evidence that will be impartially collected. We aim to finalize the bulk of the investigation during 2010. We will present our case before the Judges. They will decide. This is a judicial process.

On the content, there is nothing "decided" yet, the judges just allowed the commencement of a formal investigation. There have been no indictments, no arrest warrants or confirmation of charges and I would be surprised if anything notable happened in the next 18 months before the next election.

But for the purposes of this post, I'd like to focus on the form. It just seems incomprehensible that the Prosecutor of an international Court express himself in such a telegraphic fashion. Mr. Ocampo also appears in a video produced by the Hauser center where he reproduces exactly the same way of conveying ideas. And the example I give earlier does not show that he actually repeats some of sentences throughout the statement, to increase their impact...
I don't know why he believes he should express himself like this. The statement seems to be perfectly tailored for an audience that seems to be perceived as incapable of comprehending sentences longer that 5 words (Human Rights activists and Africans?...). I'm a little reluctant to attribute such thoughts to Prosecutor Ocampo, but one can't help feeling patronized when being spoken to like a child. And if it's not based on what he perceives to be what people want to hear, I don't really see any other explanation for such absence of effort in drafting a statement. Ok. We get it. Justice good. Criminals bad.

More importantly, this is not just an issue of the Prosecutor. He is also the most visible figure of the ICC. He represents the Court when he travels abroad or announces new investigations and cases. Critics of the ICC in past years invariably focus on the Prosecutor and I believe that the capacity of the Court depends, and will depend in the future on how the Prosecutor conveys his ideas to the communities whose help the ICC as a whole requires. Too often, Mr. Ocampo seems to act as a spokesperson of the Court and of the general "interests of justice". That is not his function. He is a prosecutor whose role is to gather legal evidence of the commission of crimes and provide both incriminating and exonerating facts against a defendant. His statements, both in form and in content, go beyond this by portraying him as a avenger of wrongs, on a crusade against crime, which reflects badly on the ICC (see, among other examples, Ocampo's recent "Bashir is Hitler" comment). Indeed, the ICC is but one institution in the general international framework for the advancement of international peace and security, and Mr Ocampo is but one keg of this institution. A perception of arrogance (whether real or not is not the question) on the part of the most public figure of the ICC can only be a hindrance for its ultimate success.