Posts Tagged International Criminal Law
The Economist, one of my favorite sources for news and analysis, has a great piece on international justice in this week’s edition, that offers a very much on-the-spot assessment on the status of international criminal justice and the challenges ahead.
Although the article starts by explaining that international criminal justice, whether through the International Criminal Court or through the ad hoc tribunals (ICTY or ICTR), has never been busier than recently, it puts forward several arguments that I think are worth going over.
When International Justice Meets “Foreign” Cultures (Part II) – “Fact-finding Without Facts” by Professor Nancy Combs
Part II of my posts on the difficulties raised when international justice encounters “foreign” cultures (see Part I here) – or to be more exact, cultures and cultural paradigms it is not familiar with – is due to the fascinating conference I attended this evening at the T.M. C. Asser Institute as part of their Supranational Criminal Law Lectures series, which featured Professor Nancy Combs of William & Mary Law School.
The conference was about Professor Combs’ latest book, titled rather provocatively “Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions” (Amazon link here, Professor Combs’ presentation of the book over at the IntlLawGrrls blog here). So it was an exercise in self-promotion, but it was so fascinating, Professor Combs’ work is so original and well thought-out, and she is such a great speaker, that I can only forgive her. Besides, everyone’s got to make a living, even academics. And it’s such a pleasure to finally put a face on the articles I’ve read by Professor Combs during my LLM. So yes, I’m quite under the charm.
This post gathers a recollection of what I heard tonight, with the help of my notes. It’s a mix of what Professor Combs said, more or less paraphrased, and even extrapolated at times as I insert some of my own thoughts. I do not speak for Nancy Combs – and be warned that I might have gotten something wrong, or interpreted her words in a subjective and/or incorrect manner. In any case, do not challenge me on what Professor Combs might have said – and if in doubt, I can only recommend that you check out her book. I certainly will. Read the rest of this entry »
Sorry about the late posting, this completely slipped my mind. There’s another conference at the T.M. C. Asser Institute tonight in The Hague, with Professor Nancy Combs.
Here is the summary, from the T.M.C. Asser Institute’s website:
Title: ‘Factfinding in International Criminal LawSpeaker: Nancy CombsTime: 19.30Location: T.M.C. Asser Instituut
Registration not needed, seats available on a first come first serve basis
“The presentation will explore the issues raised in Combs’s new book “Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions.” In particular, Combs will detail the testimonial deficiencies that impede fact-finding at many international tribunals and will consider ways in which those fact-finding impediments can be ameliorated.”
The Grotius Centre for International Legal Studies, the T.M.C. Asser Institute and the Coalition for the International Criminal Court invite you to the Supranational Criminal Law Lecture Series.
The Supranational Criminal Law Lecture Series (SCL Lecture Series), aim to contribute to information-sharing and public discourse on contemporary legal issues, while benefiting from the input of distinguished practitioners and experts in the field. The lecture series are particulary interesting for all professionals working with, or interested, in international legal activities in The Hague. These include lawyers, journalists, diplomats, NGO representatives, LL.M-students, and academics. However, everyone who is interested is welcome to attend.
And for those who have doubts, let me remind you that the Conference is free!
Not that I want to do another blog review so soon, but a recent exchange between Opinio Juris‘ Julian Ku and Foreign Policy The Multilateralist‘s David Bosco on the International Criminal Court has caught my attention. It’s an interesting exchange between someone with a very American and conservative view on the ICC (Julian Ku), and another who’s closer to the center and apparently slightly more favorable – or perhaps “less unfavorable” being a more appropriate expression – to the Court (David Bosco).
You would probably think that I’d take Bosco’s side on this debate, and I wish I were, but – at the risk of not making many friends – I’m going to take neither.
My opposition to Julian Ku is clear, and is one I’m comfortable with. From what I’ve been reading, Julian Ku belongs to the American school of thought that considers the ICC to be a threat to American interests, that the adoption by the Assembly of States Parties at Kampala in June of a definition (PDF) for the Crime of Aggression (Article 5(1)(d) of the Rome Statute – PDF) is a failure for US diplomacy, and that US cooperation with the ICC will lead to nowhere. Read the rest of this entry »
This is going to be a short post, as I’m short on time, and I don’t really know what to think about this anyway. The Sudan Tribune reported yesterday that Gaddafi’s son, Saif Al-Islam, through the intermediary of his human rights group – the Arab Alliance For Democracy Development and Human Rights – expressed support for the prosecution of perpetrators of mass atrocities in Sudan, “irrespective of their positions“.
Here’s an excerpt from the article:
“August 11, 2010 (WASHINGTON) — A Libyan human right group headed by the son of Muammar Gaddafi has issued a statement last week calling for prosecuting perpetrators of war crimes in Darfur “irrespective of their positions” in what appears to be a subtle reference to the indictment of Sudanese president Omer Hassan Al-Bashir by the International Criminal Court (ICC).
The Qatar-based Al-Jazeera website said that the statement by the Arab Alliance For Democracy, Development and Human Rights (ADDHR) coincided with a visit made by Bashir to Tripoli last Wednesday for talks with his Libyan counterpart.
Bashir is wanted by the International Criminal Court for war crimes and genocide during Darfur’s seven-year conflict
“The Arab Alliance For Democracy, Development and Human Rights continues to monitor and follow the grave humanitarian situation in Darfur and the resulting suffering and serious violations of human rights and crimes against humanity,” said a statement by the group on their website.
“The continuation of humanitarian violations against the citizens of Darfur and subjecting them to the suffering, killing and displacement is a serious situation that requires condemnation and working to stop it,”.
“[The world] cannot continue to turn a blind eye to crimes committed against innocent people in Darfur by parties to the conflict [including] government and rebel factions. [The world] cannot continue to postpone the realization of justice and offering compliments to offenders irrespective of their positions. This requires all states, governments, organizations and human rights activists to show solidarity with this humanitarian issue and not siding with the devil’s advocates so that each party faces the results of their own actions,” the statements reads. (…)”
The article further explains that this is really a message sent by Tripoli to Bashir, as the relationship between Sudan and Libya has been rather tense lately.
I honestly don’t know what to think about this. Should I take it seriously or is this hypocrisy at its best? Or am I missing something?
You tell me.
As many of you probably have heard by now, Trial Chamber I of the International Criminal Court has ordered the release of Thomas Lubanga Dyilo in an oral hearing following a decision last week imposing an unconditional stay on the proceedings of the case. Mr. Lubanga is a Congolese warlord who was put on trial in the ICC on charges of war crimes committed in the rich Ituri region of Congo, war crimes related to the enrollment of children in his armed group. Arrested in March 2005, his trial started on 26 January 2009. He is the first accused to face trial before the ICC, and so far it’s looking like it’s heading towards a complete fiasco. The Trial Chamber gave the OTP 5 days before it implemented its decision and Mr. Lubanga can walk free, in order to give the Prosecutor a chance to appeal, which it probably will do (UPDATE: Prosecutor announced that he has appealed).
The issue at hand. So why did the Court decide to stay the proceedings of this case and a few days later order the release of Mr. Lubanga? Apparently, the OTP (Office of the Prosecutor) committed a series of procedural irregularities by trying to conceal documents, and in particular the name of a key witness – only known as ‘intermediary 143’, from the defense and the judges, and this despite several orders by the Trial Chamber to release such information.
Clearly, there’s something of a problem when the Prosecutor refuses to abide by the orders of the Chamber. As Kevin Jon Heller writes (in the comments sections): “Prosecutors do not get to ignore court orders. Period. If they do, they should be held in contempt and, if the relevant rules provide, removed.“
The OTP, for its defense (there’s some irony in there…), claims that it is bound by an “independent statutory obligation” to Protect Witnesses, on the grounds of article 54 of the Rome Statute. According to the OTP’s position, it has a statutory obligation to protect witnesses from foreseeable risk, independently from whether the Chamber itself considers that the circumstances do not pose a risk to the said witness. To which the Chamber answered rather dryly (from Dov Jacobs’ post): “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.” (§27).
For a deeper discussion on the validity (or lack thereof) of the OTP’s claim that it is bound by an “independent statutory obligation,” see another one of Kevin Jon Heller’s post at Opinio Juris, where he considers that there is no such obligation.
My expertise in ICC Procedural Rules is still rather limited (hoping that will change in the future), but on principle I have to agree with the Court and Professor Heller. A Prosecutor must obey the Court. End of story, no discussion. Any exception to that rule opens a Pandora’s box that could lead to some serious judicial dysfunctionality.
The difficulty of protecting witnesses in a conflict zone. That being said, I think this situation raises the issue of protecting witnesses within the framework of the recent international criminal justice system that are still located in conflict zones. The purpose of international criminal justice is to bring law and order in lawless and chaotic situations, protecting victims from their tormentors, but as we have observed again and again since the 1990s, there’s only so much Justice can do without the international community’s backings, especially in terms of logistics and soldiers to enforce their decisions. International criminal justice has to make do with this reality, which won’t change anytime in the near future. This gives us the opportunity I believe to reflect a bit further on how far international criminal justice can go to protect its witnesses without causing the trial to be unfair.
How this is also good news for International Criminal Justice. So, how is this a good thing for international criminal justice? On a first approach, it looks bad. The trial of the first accused before the ICC, who was on trial for the past 18 months, is appearing to crash and burn due to errors by the OTP. The Court’s detractors and doubters (and there are many of them out there) will probably have a field day with this.
But there’s also good news involved. As Mark Kersten writes in his blog,
“The decision illustrates the effective working of procedural law at the ICC. (…) This decision flies against popular assertions by the Court’s detractors that it’s a Western, imperial Court meting victor’s justice. The decision to uphold important procedural law at the Court by its judges in the favour of the alleged war criminal severely weakens claims of victor’s justice.”
There has been a lot of muttering, in Africa and elsewhere, that the International Criminal Court is really the “African Criminal Court”, as it has so far only operated in Africa, and that it is, as Mark mentions, a neo-colonialist or imperialist European-based Court and the latest weapon white men found to dominate the Continent. This decision proves otherwise: the Judges of the ICC are independent, honest and rigorous. They will uphold procedural rules in order to guarantee a fair trial, even at the risk of letting a known warlord walk. And that’s, believe it or not, a very good thing for the credibility of the international criminal justice system.
Fairness is essential for international criminal justice. In the words of Judge Richard Goldstone: “the success of international tribunals will be tested by whether the trials were fair.” (in M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, Boston 1998), p. 26)
What future for ICC Chief Prosecutor Luis Moreno-Ocampo and Mr. Lubanga? This could put Luis Moreno-Ocampo on the hot seat. After several blunders as Chief Prosecutor, some legal scholars, such as previously mentioned Opinio Juris’ Kevin Jon Heller, are starting to call for his removal by the Assembly of State Parties, as is made possible by article 46 of the Rome Statute. As for Mr. Lubanga, maybe he will be having dinner with Professor William Schabas, while the rest of us hope he will not be going back to Congo and return to his former activities.
Good news today for any international criminal lawyer interested in the International Criminal Court’s role in bringing perpetrators of mass atrocities in Darfur to justice: Omar al-Bashir, the recently re-elected President of Sudan, has been indicted by the Pre-Trial Chamber I on charges of genocide (here is the document, in PDF).
The Pre-Trial Chamber had refused the first time to charge al-Bashir with the crime of genocide, charging him “only” with crimes against humanity and war crimes, on the ground that the evidence presented by the Prosecutor concerning the crime of genocide did not meet the “reasonable grounds” standard defined by article 58(1)(a) of the Rome Statute. The Chamber considered at the time that the Prosecutor had not sufficient evidence indicating that Omar al-Bashir had specific genocidal intent, a required element of the crime of genocide.
For those unfamiliar with the Rome Statute or genocide as a legal, not social, matter, a brief explanation is I believe necessary. The crime of genocide is a very specific and strictly defined notion. Considered by many to be – in the words of Professor William A. Schabas – the “Crime of Crimes,” it is defined by article 6 of the Rome Statute, which states:
“For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
The keyword here which I emphasized is “intent”, which is the subject of much discussion among academics and of much misunderstanding between legal scholars and others who adopt a larger, more “social” definition of genocide. As far as international criminal law is concerned, to be guilty of genocide, an individual must have the specific intent to destroy a national, ethnical, racial or religious group. Destruction of such groups without the specific intent to eradicate is not – legally speaking – considered genocide, but falls into the “crimes against humanity” or “war crimes” categories. The former category is known informally among international criminal lawyers as the “bucket crime,” as anything that falls short of genocide ends up being considered as a crime against humanity.
Perhaps another subject of clarification for some but that should appear as obvious to many: under the Rome Statute just like most democratic Western-style judiciary systems, a Prosecutor must convince a Judge that his evidence is solid enough to justify an arrest warrant. In the case of the ICC, the Chief Prosecutor must convince 3 Judges composing the Pre-Trial Chamber, who may or may not issue an arrest warrant as demanded by the Prosecutor. The Prosecutor may, however, appeal the Pre-Trial Chamber’s decision before the – you guessed it – Appeals Chamber (article 57 and article 82 of the Rome Statute).
To return to the ICC and al-Bashir, the first decision by the Pre-Trial Chamber was hotly contested by certain scholars, such as Opinio Juris’ Kevin Jon Heller, who considered that the court’s interpretation of article 58’s “reasonable grounds” requirement was far too strict. The Appeals Chamber later on also sided against the Pre-Trial Chamber’s position in a decision dated on 3 February 2010, lowering the standard of proof initially required.
This led to today’s decision by the Pre-Trial Chamber I to issue an arrest warrant against Sudanese Omar Al-Bashir, this time on the count of genocide.
Battle’s not over yet, in any case. A lot still needs to be achieved. Although Mr. al-Bashir’s traveling plans have been disturbed, he has still not been arrested, has been recently re-elected (which politically always complicates things), and some still see him as taking part in a peace plan, a sad repeat of the “Milosevic Strategy” adopted by the U.S. State Department in the 1990s which had produced mitigated results.
That being said, it is still good news.
PS: I’m looking forward to read Kevin Jon Heller’s perspectives on the latest decision over at Opinio Juris.
Finally, on the arrest warrant and the question of head of state immunity, see Dapo Akande’s post over at EJIL: Talk!