Archive for January, 2011

In Case You Missed It – Callixte Mbarushimana Transferred to The Hague

Callixte Mbarushimana, the FDLR leader wanted by the International Criminal Court for crimes allegedly committed in the Kivus in 2009, was transferred by the French authorities to The Hague yesterday.

See the Jurist report here.

Callixte Mbarushimana is the fifth person to be arrested following the issuance of an arrest warrant by the International Criminal Court.

His initial appearance before the Court should take place on Friday at 9.30 CET. See the ICC press release here.

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An International (Anti-)Corruption Court?

A letter to the International Herald Tribune (published on the New York Times website) has caught my attention. The author writes:

History shows that one corrupt regime is usually followed by another. This is so because corrupt countries are often given no chance to build up bureaucracies that can contain corruption. Hence, revolutions tend to be power struggles in which competing elites seek advantage, even though their motives might have been pure at the start.

A country like Tunisia would greatly benefit if there were an international tool that could fight corruption from outside a country. The world needs an international tribunal, like the International Criminal Court, that could make significant corruption an international crime, subject to prosecution.

After considering amendments to add to the Rome Statute the Crime of Terrorism and the Crime of Drug Trafficking, shall we imagine a “Crime of Corruption”?

The idea is amusing, but even for a partisan of international justice such as myself, I have to admit that I am more than skeptical and reluctant. As much as corruption can indeed gangrene a country and cause immeasurable harm to the population, I have a hard time imagining an international tribunal dealing with this, unless corruption has reached such heights that it amounts to crimes against humanity.

The struggle against corruption is best left to inter-state cooperation through organizations such as Interpol.

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The Turkel Commission Releases Part I of its Report on the Legality of the Gaza Flotilla Raid

The Public Commission to Examine the Maritime Incident of 31 May 2010, also known as the Turkel Commission, has published Part I of its findings on the legality of the Israeli raid against the Mavi Marmara that caused the death of nine Turkish pro-Palestinian activists and provoked an international outrage last year. The Commission has deemed the raid “in accordance” with international law.

From the New York Times article:

JERUSALEM — An Israeli commission that examined the deadly raid on a flotilla off Gaza last May concluded on Sunday that Israel had acted in accordance with international law when its military enforced its naval blockade by intercepting the ships in international waters.

The commission alluded to what it called “the regrettable consequences of the loss of human life and physical injuries,” — nine pro-Palestinian campaigners were killed and more than 50 were wounded during clashes on a Turkish vessel that was attempting to breach the blockade. But the commission found that Israeli soldiers had acted “professionally and in a measured manner in the face of extensive and unanticipated violence.”

Part I of the Report is available here. I will read it over the course of the next few days, and will probably publish some thoughts.

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International Justice in Haiti and Tunisia?

Former Tunisian President Zine el-Abidine Ben Ali - image courtesy of France 24

Should two former dictators, the Tunisian Ben Ali and the Haitian “Baby Doc” Duvalier, face trial in front of an international tribunal such as the International Criminal Court?

The idea has been discussed, albeit briefly, especially in the case of Ben Ali following his remarkable downfall caused by what is now known as the Jasmine Revolution. Isabelle Tallec, independent journalist who blogs at Esprit de Justice (in French – but with a Google Translate bar) about issues relating to international justice, reported a few days ago on the different calls for Ben Ali to be indicted in front of an international court.

Ms. Tallec writes:

Ce n’est encore qu’un mouvement embryonnaire, mais qui a trouvé ces derniers jours un prolongement judiciaire. Ben Ali tombé, des appels épars ont commencé à circuler sur Internet demandant à ce qu’il soit traduit en justice et réclamant une enquête sur les crimes allégués du régime déchu.

Certains émanent de groupes informels, déjà existants ou constitués pour l’occasion, d’autres, d’organisations plus structurées. Des pétitions parfois relayées par les médias français et qui pour la plupart sollicitent l’intervention de la Cour pénale internationale (CPI).

Jean-Claude 'Baby Doc' Duvalier Photo: REUTERS

While in Tunisia a dictator flees his country, in Haiti, a former dictator, Jean-Claude “Baby Doc” Duvalier, returns to “help with [the] reconstruction” of his country, shattered by an ongoing humanitarian crisis since an earthquake devastated the country over a year ago. Whatever Baby Doc’s real reasons for returning to his broken home country are, he is now in turn in trouble with Haiti’s justice system, which has charged him with theft and corruption and is considering investigating alleged crimes against humanity committed during his tenure as the small nation’s despot.

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Callixte Mbarushimana’s Lawyer Contests Validity of Arrest Warrant – Divulgation Issues With OTP Continue

After Callixte Mbarushimana’s failure to stop the French authorities from transferring him to The Hague, Nicholas Kaufmann, his lawyer, has a new trick up his sleeve to try to get his client released: contesting the validity of the arrest warrant that was issued on 28 September 2010. We are not yet even close to the trial stage of the proceedings, and already problems are appearing that are worth commenting upon.

The claim. Mr. Kaufman’s main argument is that the arrest warrant for Callixte Mbarushimana was “sought and issued at a time when the case against him was plainly inadmissible” because there was an ongoing investigation regarding these same crimes and his client in Germany. This, he argues, despite the Prosecution’s claims that there were no such investigations in any State when they applied for the arrest warrant, and in violation of the fundamental principle of complementarity the International Criminal Court functions on.

To put it in simple terms, the Defence’s filing argues in elaborate and lawyerly terms that the Prosecution lied on a fundamental condition of admissibility – that there is no ongoing investigation for the same crimes anywhere – to get the Pre-Trial Chamber to issue the arrest warrant.

For now, it is hard to assess the validity of Mr. Kaufman’s claims, and it is better to wait for the Prosecution’s rebuttal due on Monday to pass any form of judgment or comment on this. However, it doesn’t stop there. Read the rest of this entry »

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Debate at the New America Foundation on Guantanamo for its Ninth Birthday

Yesterday was the ninth anniversary of the opening of the infamous detention center for “unlawful combatants” in the War on Terror at a U.S. Navy Base in Guantanamo Bay, Cuba. In order to reflect on the question of treatment of detainees in the struggle against terrorism, as well as Obama’s failure to keep his promise to close the Guantanamo detention facilities by now, the Washington D.C.-based think tank the New America Foundation organized a panel of experts to discuss these difficult and thorny issues.

Here is the NAF’s presentation of the panel:

Nine years after opening the prison at the Guantanamo Bay naval base, the United States still faces major questions and partisan rancor over the future of the prison, the fate of its 174 remaining detainees, and the proper means of trying and holding terrorism suspects detained at home and abroad. Please join the New America Foundation National Security Studies Program for an important discussion on the prison’s future, and the broader context of the state of terrorism, detention and the law today.

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Dangers Ahead For International Justice – A Very Brief Reaction to David Bosco’s Post

David Bosco is raising the alarm on his excellent blog The Multilateralist over at Foreign Policy on some potentially very bad news for the international criminal justice project, regarding the ICC’s difficulties in Africa and the Special Tribunal for Lebanon’s delicate mission in an explosive-as-ever Lebanon.

The post is not very long, so it is difficult for me to quote excerpts without quoting the entire thing (which would not be appropriate without the author’s approval), so I can only strongly suggest you read it.

I do not have time for a detailed response, so I will have to content myself with two quick observations:

Regarding an engineered African withdrawal from the Rome Statute, the threat is undeniably there, and I do not doubt the credibility of the reports David Bosco mentions. However, things are a little more complex than what they appear, as Africa is a) not a homogeneous block – some African States are very pro-ICC, others a bit less, a few outright anti-; b) some African States do have an interest in having the ICC intervening in their country, and c) I was surprised while reading the statements given by delegations at the latest Assembly of States Parties at how conciliatory and even positively low-profile the African States’ declarations were. You’d think for a continent plotting to leave the Rome Statute in a coup, they would raise the issues bothering them in a louder fashion than what they did last month.

I sincerely doubt anything would happen before the Prosecutorial elections next year. The African group has a strong chance of having elected an African Prosecutor for the ICC, and I simply do not see them forfeiting that chance.

Regarding the situation in Lebanon, it is particularly delicate and one I have been meaning to write on for quite a while, and probably will as soon as I have a little more time on my hands (I still have a pile of reports on Lebanon to go through first). But it seems clear that the difficulties at the heart of the peace versus justice debate have never been so discernible and clear-cut than it is there. This is a situation to monitor and think about, for both sides.

Hopefully, I will have time to write more about each situation soon.

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Do Ask, Do Tell, We Don’t Care

In 1993 a so-called comprise between the then president of the United States Bill Clinton and military leaders resulted in the policy known as ‘Don’t Ask, Don’t Tell’. The policy meant that gay men and women, as well as bisexuals, could serve in the United States armed forces as long as their sexuality was kept secret, and they did not engage in these practices on or off base. In return for this there would be no intrusions into anyone’s personal lives. Although consensual sexual behaviour between those of the same sex remained a criminal offence under military law, and since the implementation of DADT in 1993 14,000 service persons have been wrongly discharged from the services based on a sexual trait, and NOT due to any lack of skill.

To summarize, this policy led to a clear message that non-heterosexual behavior of any kind was unacceptable, it cost people their livelihoods, led to harassment, and the military lost out on valuable members of the service due to an irrelevant fact.

Now however in 2011 ‘Do Ask, Do Tell, We Don’t Care’ policy has occurred. I use these words for emphasis on the policy, but in essence the ‘Don’t Ask, Don’t Tell Repeal Act’ of 2010 has done just that.

This Act signed by president Obama is a massive step in stopping irrelevant characterics stigmatising capable men and women.

So I would like to give big congratulations to the United States for setting an example to the rest of the world.

I leave with just one important message from Human Rights Watch:

“Human Rights Watch urges the Defence Department to implement rapidly the “Don’t Ask, Don’t Tell Repeal Act of 2010.”

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Only Legal Scholars Could Have A Debate About Legal Blogging

I have just finished reading Jean d’Aspremont’s latest post over at EJIL: Talk! on the value of legal blogging and, feeling particularly conflicted on the matter, I cannot resist the temptation to put in my two cents.

Jean d’Aspremont’s post, titled ‘In Defense of the Hazardous Tool of Legal Blogging’, is a very well-written piece on the limits and the value of legal blogging, with an emphasis on the latter. It would appear that there is an ongoing debate in legal scholar circles about the purpose, effect, and merit of legal blogging, in particular over at the Yale Law Journal website (see this post in particular).

Dr. d’Aspremont makes very interesting points, and juggles certain ideas and purposes of legal blogging that I have toyed with since I created The International Jurist now more than six months ago, although admittedly in a far more eloquent and thought-out manner than I ever did.

I particularly appreciate certain arguments he puts forward, such as the usefulness of blogs to share and experiment with certain ideas at an earlier stage than possible with peer-reviewed publications, to inform each other of developments in each blogger’s area of expertise, and all in all, create a place for informal discussion and debate among ourselves and whomever wishes to join us that is not limited to the coffee breaks of a conference on international law at the Peace Palace or elsewhere (I sometimes get the impression that lawyers and academics come to such conferences more for the coffee break to meet colleagues than for the conferences themselves).

And yet, on the other hand, I have a deep feeling of irritation that certain legal scholars take themselves so seriously and yet are so insecure to feel that legal blogging threatens their realm of scholarship that they need to debate and criticize the value of legal blogging. (I am obviously not talking about Dr. d’Aspremont here.) There is no rational reason why this debate is having place, and I have a feeling that only legal scholars could entertain such a thing. As Jean d’Aspremont very rightly quotes and supports another participant in this surprising debate, Ann Althouse, let the law journal be the law journal and the blog be the blog. End of story.

Speaking for myself, I have no pretension of any sorts writing this blog. When I created it, I was a modest Public International Law LLM student in Leicester a little too enthusiastic about the issues and challenges of the subject-matter of my studies. Today, I am a humble legal intern working in the International Criminal Justice system. I write this blog because I encounter in my readings and work thought-provoking items and events that I enjoy sharing and discussing. I enjoy writing. I test different styles. I think about different themes. I experiment with ideas – yes, even half-baked ones. The International Jurist has no aspiration to compete with expert blogs such as EJIL: Talk! or Opinio Juris or any other similar websites, let alone legal journals, and I’m sure most other legal bloggers feel the same way.

So why are we having this debate?

And honestly, is it a problem if I put out a half-baked idea once in a while? Because after all, when that happens, I trust fellow legal blogger, regular commenter, and altogether far more knowledgeable jurist Dov Jacobs will be there to call me out on it. Right, Dov?

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Some Quick Thoughts About Africa, the Crime of Terrorism and the Rome Statute

As readers may know, I have been paying particular attention to the African Union’s attempt to put together a comprehensive counter-terrorism treaty, and have already posted some thoughts on the matter on the al-Wasat blog a few days before Christmas.

A few more thoughts occurred to me today as I was reading (for my current employer) the statements given by delegations to the Ninth Assembly of States Parties of the International Criminal Court, which took place last month in New York. I still have a handful to go through, but so far the delegation from Nigeria’s statement (PDF file) has particularly caught my attention.

From the third paragraph of the statement, I quote and emphasize:

One significant contribution of our common efforts in developing an international criminal justice under the Rome Statute is the strengthening of the international community, acting in concert, to check the activities of armed non-state actors. As we all know, these are usually armed groups that operate outside state control or authority, often constituting threats to corporate existence of their victim states through operational styles marked by horrendous acts of impunity.

I was intrigued by the mention of ‘armed non-state actors’, also known as non-State armed groups. Of course, that term means many things. In fact, it is fairly self-explanatory: any armed group that is not under the direct control of a State is, logically, a non-State armed group.

But as I read that I subconsciously understood “terrorist groups” and that has brought me back to what I wrote last month. Read the rest of this entry »

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