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Sunday, May 30, 2010

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

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...

Thursday, May 27, 2010

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

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...

Wednesday, May 26, 2010

Mladic to be declared dead by Serb authorities?

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"

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...

Monday, May 24, 2010

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

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...

Friday, May 14, 2010

Follow up: Garzon suspended

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... 

Wednesday, May 12, 2010

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

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).

Saturday, May 8, 2010

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

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.