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Thursday, September 26, 2013

Taylor Judgment: a "victory for justice"?

Following the confirmation of the 50 year sentence of Charles Taylor, there is a tone of celebration from a number of human rights organisations. One expression that has struck me as problematic is that of this verdict being a "victory for justice", as seen for example in this tweet by Human Rights Watch executive director:
On a certain level, I of course understand what he means. This verdict is seen as vindication for some of the victims of the Sierra Leone conflict and in this sense constitutes "justice". However, I think that the expression is disturbing in what it says on the state of mind of those who use it.

Indeed, technically, if you trust the legal system, a conviction is no more a "victory for justice" than an acquittal would be. It is the system that must be seen as just, irrespective of the particular outcome in a given case. If we do not accept that acquittals are an option, then there is no point in pretending to want a system of international criminal justice, with a strong protection of the rights of the defense. We might as well reintroduce summary executions, which, I'm sure would satisfy some victims just as much.

On the substance, I'm not entirely sure how much of a "victory for justice" it is, when you see the systematic violations of the rights of the defense in international criminal proceedings. The acts that are being prosecuted are the most heinous crimes that affect the "conscience of humanity", and the highest standards of evidence should be imposed, rather than the lowest ones, as is sometimes the case.

Attachment to these high standards of justice in the respect of the rights of the defense should be the first concern of all people involved in this field, because it is at the heart of the international criminal justice project. Without a fair trial, there cannot be, on the long run, any victory for justice.

First thoughts on the Taylor Appeal Judgment: Sentence upheld and Perisic blasted

As I logged on to the livestream of the SCSL this morning at 10.30, there was a song playing on a loop with the most extraordinary lyrics: "i just can't stand to see you go, i don't understand where we went wrong" (it's a song by Bonnie James called Happy Home). For a second I thought this was a subliminal way for the Court to announce an acquittal... But it turned out not to be the case, as the Appeals Chamber of the Special Court for Sierra Leone has confirmed the 50 year sentence against Charles Taylor. Having followed the reading out of the summary, there is mostly nothing very surprising about the Appeals Judgment. They confirm that crimes against the civilian population were committed by the RUF-AFRC and that Taylor had some role in the events. There are a few points that deserve some comments in my view, until we actually get the judgement.

First of all, the AC discussed the question of evidence. It essentially approved of the Trial Chamber's approach to evidence, specifically rejecting the claim from the defense that uncorroborated hearsay evidence as a sole basis for conviction should not be allowed. I find that quite appalling frankly, but thus is the nature of the international criminal procedure. 

Of course, everybody was waiting for the discussion on aiding and abetting after the Perisic appeal judgement at the ICTY on the question of "specific direction". As discussed by Manuel Ventura here, there could have been an impact on the Taylor appeal judgement. It turns out that there wasn't because the Appeals Chamber upheld the Trial Judgment on the fact that you need a "substantial contribution" to the crime for the actus reus of aiding and abetting to be constituted, and that knowledge is sufficient mens rea. The Appeals Chamber seems to have gone out of its way to not just ignore Perisic, but actually blast it. In a separate development of the summary, the judge said that the AC was not convinced by the Perisic judgment which "does not contain a clear and detailed analysis". I'm not sure I see the point of doing that. This little ego contest between international judges has no place in what is arguably one of the most important judgements in ICL. The SCSL is not bound by ICTY case law. If you're not going to use it, just don't use it. Judges should keep this kind of ultimately irrelevant discussion for the cafeterias of their respective tribunals, the problem being of course, that they wouldn't get as much attention if they did... In any case, given the historically low quality of legal reasoning in the SCSL case law, if I were a supporter of the Perisic approach, I would be happy for the SCSL to disagree with me, rather than the opposite...

While we're on modes of liability, I found the way the judge discussed the distinction between the various modes (ordering, planning, instigating, aiding and abetting...) indicative of a certain sloppiness in the way these modes have been approached. Indeed, in rejecting the Prosecution ground of appeal relating to the fact that Taylor was not found guilty under ordering and instigating, the AC found that aiding and abetting and planning were more "fitting" in relation to the conduct of Taylor. However, it's not a question of more "fitting" or not, it's a question of satisfying a legal definition or not. The mode of liability should not depend on the judges' impression of the narrative of the case. It should depend on whether the Prosecutor has proven beyond reasonable doubt that certain necessary criteria are met.

The AC also addressed the question raised by alternate Judge Sow at the end of the Trial Judgment on whether there were adequate deliberations. The judges, taking the opportunity to remind the world that Sow should never have spoken, found that there had in fact been adequate deliberations. I also seem to have understood that the defense claimed that the absence of Sow's name on the cover page of the Trial Judgment is a violation of the rights of the defense... Not their strongest point.

Finally, on sentencing, the Appeals Chamber found that the Trial Chamber had erred in considering that aiding and abetting should carry a lower sentence. The reasoning was a little circumvoluted, but it seemed to have several dimensions, 2 of them striking me as unconvincing. One of them is that the Statute does not distinguish the different levels of commission. That's true, but the statute does not distinguish much of anything. It does not contain Joint Criminal Entreprise, nor does it discuss the criteria for aiding and abetting, so it's not in my view a real argument. The second argument that struck me, is that creating a hierarchy between modes of liability would somewhat be unfair for the defense. I can't even start imagining how that argument works, so I'll just leave it at that.

More generally on sentencing, this confirms my impressions from the Trial Judgment: I really don't see the point of all those discussions on sentencing in international law, when all the practice shows that it is essentially a random guessing game. There is no indication of what crime or count carries what sentence, so we are left with a lump sum assessment that cannot be analyzed. For example, some municipalities were removed from the conviction in Taylor, without any impact on his sentence. I think this is probably contrary to the nulla poena sine lege principle, but in any case, we should stop commenting on sentencing criteria in the abstract until judges are required to specifically explain what sentence is given for what crime and what reduction or increase comes from mitigating and aggravating circumstances.

Possibly more to come when I see the actual judgment. Stay tuned...

Wednesday, September 18, 2013

Guest Post: The Use of Chemical Weapons is not a Crime against Humanity

By Catherine Harwood, Grotius Centre for International Legal Studies

The use of chemical weapons in Syria in August 2013 has generated widespread international outrage. International actors have condemned the use of chemical weapons and have employed the language of international criminal law to convey the severity of the violation. The UN Secretary-General stated that “[a]ny use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law. Such a crime against humanity should result in serious consequences for the perpetrator.” Similar sentiments were expressed by the Bureau of the Parliamentary Assembly of the Council of Europe. US President Obama also labelled chemical weapons “a crime against humanity, and a violation of the laws of war”.  The use of chemical weapons is prohibited under both conventional and customary international law and may be prosecuted as a war crime. But does the prohibition extend to liability under international criminal law as a crime against humanity?

Many voices have called on the Security Council to refer Syria to the ICC.  Although practical prospects of referral remain doubtful, the ICC is in principle an appropriate institution to conduct international prosecutions regarding the situation in Syria. If a prosecution is initiated, many may expect to see the use of chemical weapons reflected in the charge sheet.  In light of this, the question whether the use of chemical weapons could amount to a crime against humanity is explored by reference to the Rome Statute. This inquiry explores the statements by the UN Secretary-General and others that any and all uses of chemical weapons amount to crimes against humanity.

  • The use of chemical weapons as a war crime

Despite the wide prohibition of the use of chemical weapons in international law, the Rome Statute does not expressly prohibit ‘chemical’ weapons.  However, several provisions indirectly prohibit their use in international and non-international armed conflicts. At first glance, article 8(2)(c)(xx), which prohibits the use of weapons “of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate”, appears most applicable. However, this provision only prohibits weapons listed in an annex to the Statute, which has never been created.  In addition, it only applies to international armed conflicts, which would exclude the conflict in Syria. 
The Rome Statute also prohibits the use of employing “poison or poisoned weapons” under articles 8(2)(b)(xvii) and 8(2)(e)(xiii); and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” in articles 8(2)(b)(xviii) and 8(2)(e)(xiv). These broad provisions arguably include chemical weapons, but they have not yet been applied in practice. Some controversy surrounds the interpretation of these provisions, as noted by Dapo Akande and Bill Schabas, who both consider that the Statute can and should be read as prohibiting chemical weapons.
The use of chemical weapons could also be prosecuted when used in prohibited circumstances or when their use leads to prohibited results. The use of chemical weapons could be prosecuted where it amounts to an attack that is directed against civilians under arts. 8(2)(b)(i) and 8(2)(e)(i); or is an intentionally disproportionate attack under art. 8(2)(b)(iv).  Curiously, the  latter prohibition does not apply to non-international armed conflicts. Prosecutions could also result when the use of chemical weapons results in death or great suffering or injury to protected persons under the Geneva Conventions under arts. 8(2)(a)(i) and (iii) and 8(2)(c)(i). In short, both the use and consequences of chemical weapons may be prosecuted as war crimes. More extensive prohibition against their use would be possible if chemical agents were listed in the annex referred to in article (2)(c)(xx), and if this provision also applied to non-international armed conflicts.

  • The use of chemical weapons as a crime against humanity

Under articles 7(1) and 7(2)(a) of the Rome Statute, crimes against humanity are prohibited acts listed in article 7(1) when committed in the context of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”,  “pursuant to or in furtherance of a State or organizational policy to commit such attack.” The Elements of Crimes provide that a relevant attack is a “course of conduct involving the multiple commission of acts referred to in [article 7(1)] against any civilian population […] The acts need not constitute a military 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”.  ICC Pre-Trial Chamber II interpreted the contextual elements of crimes against humanity in the Bemba confirmation of charges decision. The PTC held that “[t]he commission of the acts referred to in article 7(1) of the Statute constitute the ‘attack’ itself” (para. 75). The attack must be either widespread or systematic. A widespread attack is “large-scale”; “over a large geographical area or an attack in a small geographical area directed against a large number of civilians” (para. 83). The civilian population “must be the primary object of the attack and not just an incidental victim of the attack” (para. 76). The state or organisational policy may be “made by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population”. An attack that is “planned, directed or organized - as opposed to spontaneous or isolated acts of violence” (para. 81) is sufficient to satisfy this requirement.
The list of prohibited acts in article 7(1) strikes twice against the statement ‘the use of chemical weapons is a crime against humanity’: first, at the level of contextual elements; and secondly, in respect of the prohibited acts. An ‘attack’ is comprised of prohibited acts referred to in article 7(1); and only those acts listed in article 7(1) may amount to crimes against humanity. The use of chemical weapons is not listed in article 7(1). Rather,  potential consequences of the use of chemical weapons are relevant, such as murder (article 7(1)(a)) and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury” (article 7(1)(k)).  Thus, the consequences of chemical weapons, not their use per se, could amount to an attack as well as the prohibited acts. Although the use of chemical weapons and their terrible consequences often go together, they are distinguishable.
Assuming that the use of chemical weapons results in prohibited acts listed in article 7(1), several other criteria must be met before these consequences may amount to crimes against humanity. The attack must be widespread or systematic. The civilian population must also be the primary object of the attack. This element may be difficult to prove in an armed conflict, as it might be argued that chemical weapons were intended to be used against combatants and that the civilian population was an incidental victim.  However, it could be contended that the indiscriminate nature of these weapons means that any use must be regarded as making the civilian population the primary object of attack, despite any military motive. The attack must also be pursuant to a state or organisational policy. There are many possible scenarios in which this criterion would not be met. Chemical weapons might be deployed in violation of military orders; used in an unplanned or unorganised way; or used without the organisation’s active encouragement. Thus, even if the ‘use of chemical weapons’ is interpreted widely to include the consequences of use, only those consequences that are planned and sufficiently serious may amount to crimes against humanity.

  • Concluding thoughts
The prohibition on the use of chemical weapons has more recognition as a war crime, rather than as a crime against humanity.  While the ‘mere’ use of chemical weapons can amount to a war crime, only the consequences of chemical weapons, not their use per se, may be crimes against humanity.  Why then is there such an emphasis in political rhetoric that any and all use of chemical weapons is a crime against humanity?  A cynic may suggest that the label ‘crime against humanity’ has more political currency than ‘war crime’, so that its use could encourage compliance and enforcement action. Whether or not the emphasis is strategic, what is clear is that international political actors, the media and the public are engaging with concepts of international criminal law in connection with the conflict in Syria. While there is arguably greater public awareness  of international criminal law as a result of this discourse, it would be ultimately detrimental if key legal concepts are confused.  While situations of mass atrocity may amount to crimes against humanity,  ‘crimes against humanity’ is not a byword for atrocity. In the interests of clarity, public education and with an eye to expectations of victims in any eventual prosecutions, concepts of international criminal law deserve more careful  treatment.

Wednesday, September 4, 2013

Saving Private Harhoff: Report by Judge Antonetti made public and more conspiracy theories

There doesn't seem to be a day that something new does not arise in the Harhoff saga. Today, the Presiding Judge of the Chamber, Judge Antonetti, has decided to make public the report that he wrote in the context of the disqualification procedure. The decision, in French, explains the recent behind this, and annexes the report itself.

I'll start with the only thing I agree with in the decision: Rule 15bis does not apply to the current situation, as I explained in my previous post.

More importantly, this decision in my view confirms what I mentioned yesterday in relation to there clearly being a problem at the tribunal between the judges, as Judge Antonetti obviously comes out in favor of Judge Harhoff. I also don't know what Judge Antonetti is suggesting when he says in his decision that both Judges Moloto and Hall had sat on benches with Harhoff. Why is that relevant? Is Judge Antonetti suggesting that they were biased against Judge Harhoff? if so, then he should be more explicit. If not, then he should not have made this comment at all.

Both the decision and the report are interesting in showing the state of mind of Judge Antonetti, which echoes what was in the requests for clarification: Judge Harhoff did nothing wrong. Both documents explicitly refuse to discuss the content of the letter, claiming that it is private correspondence that is protected under international human rights. I find that a little unconvincing. The content of the letter and what it might illustrate is one thing, its public or private nature is another. Can Judge Antonetti really claim that he would ignore the content of a private email by which a Judge would be telling friends that he had received a bribe to convict someone? it doesn't make sense.

In any case, Judge Antonetti puts forward a conspiracy theory of his own by focusing on the source of the leak of the letter. The decision says:
Il n'est pas à exclure qu'une entreprise de déstabilisation ait été ourdie par un tiers ou une entité disposant de moyens importants pour aboutir à cet effet. Seule une enquête sérieuse pourra permettre l'identification de !'auteur de la transmission des réflexions personnelles du Juge Harhoff au journal danois et de connaître les motivations réelles de cette transmission.
The Report goes into more detail:
En l'état des hypothèses à envisager, soit il s'agit d'un des destinataires de la correspondance, soit d'une autre personne ou entité qui aurait pénétré l'ordinateur ou le réseau de communications du Juge Harhoff pour transmettre à ce journal ledit document. Le résultat a été évident : il y a eu la volonté manifeste de déstabiliser à titre principal notre Tribunal et de porter atteinte à la réputation du Juge Meron et à titre secondaire d'attenter à l'honneur du Juge Harhoff sur le terrain de l'impartialité et à titre accessoire, de porter atteinte le cas échéant à l' Accusé Vojislav Seselj lui-même pour le cas où il y aurait in fine un changement de Juge
 In a nutshell, for those who don't read French, according to Judge Antonetti, the person who leaked the letter was trying to destablize the tribunal, affect the reputation of Judges Meron and Harhoff and cause prejudice to Seselj. I find the reasoning quite extraordinary. For one, as I said before, the content of the letter is what is relevant, not how it was made public.

Second of all, I'm happy to be able to be of help to Judge Antonetti on this blog: I know the culprit. I know who tried to destabilize the tribunal and smear Judge Meron's reputation through publicizing these comments. It was Judge Harhoff. He did not write this letter to his wife and close childhood friend. He wrote this letter to over 50 people. I might be a sociopath, but I cannot think of 5 people I would trust with such comments, let alone 50. Trying to move the spotlight away from Judge Harhoff's own responsibility in this matter will just not work.

The decision even suggests that contempt proceedings could be initiated against the person who leaked the letter! Which is thoroughly ridiculous in my opinion. Already, the contempt procedure at the tribunal is subject to criticism on a number of levels, if it were to be used on such an issue, then it would be simply a mockery. If any legal action should be taken in relation to the letter, it could be by Judge Meron for defamation...

The other quite extraordinary claim in the documents is that this whole disqualification process would be affecting Seselj's rights, despite the fact that he filed the motion in the first place! Apparently, this argument also appeared his the Prosecution motion for reconsideration, as pointed out by Kevin Jon Heller on twitter yesterday:

The only basis for making this claim is that for Judge Antonetti, as for Judge Agius in the order on the follow up to the disqualification that I discussed in my previous post, the option of pronouncing a mistrial and freeing Seselj is just not on the table. This is for me the real threat to Seselj's rights, not the disqualification of Judge Harhoff.

Ultimately, what Judge Antonetti is saying is that he trusts Judge Harhoff and doesn't think that he is lacking in impartiality. In order to make that feeling known, Judge Antonetti refers to his impressions during deliberations, while saying that these are of course confidential. Which essentially means that this feeling is unsubstantiated for the outside world and has to be put in balance with the content of the letter, which is available to the outside world. The Panel decided that the letter was evidence of appearance of bias, irrespective of Judge Antonetti's feelings, and that is the end of the matter.

What these documents show is that Judge Harhoff still has a lot of support at the tribunal, who are trying to save Private Harhoff. However, I think this only works in Spielberg movies and I would be very surprised, and thoroughly dissapointed, should the disqualification decision be reversed. The bottom line is that, whatever the means chosen, and I would arguably agree with those who say that the disqualification route was not necessarily the most convincing, the end result of removing Judge Harhoff from any activities at the tribunal is the correct one. The rest is just commentary.

Tuesday, September 3, 2013

Movement on the Harhoff Saga at the ICTY: an institution grasping at straws and a delusional judge

Today has seen a sudden flurry of activity in response to the disqualification of Judge Harhoff last week (see here and here). The Vice President has issued an order on the follow up to the decision, Judge Harhoff has filed a request for clarification and so have the two remaining judges on the trial chamber (Judges Lattanzi and Antonetti) and the Prosecutor has filed a motion for reconsideration.

This is a lot of information to digest, but just a couple of preliminary thoughts. I don't have much to say on the motion for reconsideration by the Prosecution. It essentially considers that the Panel made a misapplication of the standard for disqualification and erred in fact by making findings without evidence. I'm not sure this will go anywhere, but we will have to see.

  • The Order from Judge Agius (acting President of the Tribunal)
The order considers that Rule 15, while providing for the nomination of a new judge, does not address the impact on a case. The decision is therefore taken to apply Rule 15bis which relates to the procedure to be followed in the absence of a judge for a long period of time. The choice is made because "in the interests of fairness and transparency, the procedures applicable under Rules 15bis(C) and 15bis(D) of the Rules ought to be applied to it mutatis mutandis", without much further explanation.

The relevant parts of this rule are the following:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for  a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the  proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G). 
(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President  shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

I'm not entirely convinced by the application of this rule to the current situation. For one, it's obviously not applicable. As Judge Agius acknowledges, this cannot be "strictly speaking be described as part-heard". This is an understatement, as the closing arguments concluded 18 months ago! Second of all, the situation here is very different because it is the result of a finding of partiality, so it cannot be business as usual. One has to consider whether the whole process is not viciated from the outset and whether an end of the proceedings is not the fairest solution for the accused. In this sense, I think it could have been perfectly possible for Rule 15 to apply, and for the newly constituted bench to decide proprio motu to put an end to the proceedings, or declare a mistrial, without needing 15bis.

This is in fact the most scandalous effect of the use of Rule 15bis: it takes off the table the possibility of just ending the proceedings as an abuse of process!