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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo case? (Part 3)

Published on November 6, 2019        Author: 

In this three-part series I seek to draw attention to legally-unprecedented and epistemologically-unsound evidentiary standards emerging at the ICC, particularly in the Gbagbo case.  The mainstream reaction to the Gbagbo case has been to accept the narrative that the problem lies entirely with evidence.  However, when the majority derides the “questionable quality of much of the evidence” (§1608), it speaks from a lens of Cartesian standards. If one reads the judgment instead through the lens of more typical legal standards, the evidence is harrowing.  Thousands of diverse items of evidence – eye-witnesses, videos, insiders, experts, and forensic and documentary evidence – attest to hundreds of instances of killing, wounding, raping, torturing and burning of civilians by police and other pro-Gbagbo forces.

At Nuremberg, Robert Jackson warned that giving the defendants an unfair trial would be a poisoned chalice for the tribunal itself.  My concern is that opposite extreme is also a poisoned chalice.  An exclusive focus on the interests of the accused, to the exclusion of all other considerations, leading to rarified and ungrounded standards, will also collapse the system.  If unchecked, these standards can only lead to repeated collapses of investigations and prosecutions.  We are at an interesting moment, because scholars are rightly warning against ‘crisis narratives’, and I myself have appealed for less alarmism.   Nonetheless I think that evidentiary standards are now one of the most crucial topics for study and reform.

The previous two posts (see Part I here and Part II here) gave only a cursory outline of problematic approaches to evidence and examples thereof. I will now touch on two related points, (1) evidentiary expectations for crimes against humanity and (2) investigative criticisms that overlook the applicable legal regime, and then I will conclude. Read the rest of this entry…

 
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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 2)

Published on November 6, 2019        Author: 

My aim in this three-part series is to start a conversation about unusual and problematic evidentiary standards emerging at the ICC.  These standards flow from a commendable impulse to uphold the highest standards, but they entail an unprecedented and unattainable exactitude. In my view, if these standards take hold, they will result in the repeated crashing of complex cases, making them especially poorly suited for precisely the types of cases the ICC is mandated to deal with. 

In my view, the more common and appropriate approach, seen in national and international practice, is even-handed, holistic, experiential and practical.  The experiential approach draws on human experience.  It employs sound methods of reasoning, such as triangulation, extrapolation, interpolation, and inference to best explanation, and thus it is can work judiciously with patterns and inferences.  It is also practical: it bears in mind feasibility and procedural economy.

For brevity, I will call the alternative, emerging approach the “Cartesian” approach. I introduced its features in part 1 of this series, such as its hyperscepticality, atomism, and fixation with certainty and speculative doubts.  In this post I will give some additional examples of problematic evidentiary approaches as seen in the Gbagbo trial decision.  As the judgments are over 1300 pages, I am only able to outline some of the concerns and some examples in the most general and cursory.  My hope is to trigger an invigorated discussion of international criminal evidence law.

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 1)

Published on November 5, 2019        Author: 

The aim of this post is to start a conversation about unusual evidentiary standards emerging in some judgments at the ICC.  Although the underlying impetus is commendable, these standards pose legally unprecedented and epistemologically unsound demands.  Remarkably, these novel evidentiary approaches, which depart significantly from national and international practice, have not yet triggered much conversation.  As recent cases (such as Gbagbo) have ended in acquittals, the Court-watching community has largely simply echoed the judicial criticisms of the evidence, and hence blamed inadequate investigations.  While investigative improvements are likely part of the solution, any serious effort to repair the ICC has to consider these evidentiary standards.  These standards will significantly increase the costs and delays of ICC proceedings.  In cases of any complexity, the standards can only result in failed cases.  An invigorated sub-discipline – international criminal evidence law – is urgently needed.

In this three-part series of posts, I will focus on the Gbagbo acquittal judgment.  Douglas Guilfoyle’s thoughtful ‘tale of two cases’ advances a hypothesis that the different outcome between the Gbagbo acquittal and Ntaganda conviction is because the latter focused on an easier, smaller case.  That may be true, but I want to place alongside that another hypothesis, that the difference between the two outcomes may in part be the very different approaches by the judges.

I open with a word of sympathy for judges.  At an earlier stage of international criminal law, Tribunal judges were often criticized by academics (including me) for adopting approaches that were too pro-conviction and that overlooked rights of the accused.  Hence it is entirely understandable that judges and legal officers may have lurched in the other direction, with an eagerness to demonstrate their unparalleled care for the accused. 

The problem is when the zeal for impeccable standards swings too far, and produces a method that is so rigid, formalistic, and hypersceptical that it loses sight of substance and feasibility. Read the rest of this entry…

 
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Feeling a Way Forward for International Justice – ICC, Africa and the World

Published on November 22, 2016        Author: 

As we all know, 2016 has seen, on many fronts, a surge of isolationism and nativism, as well as a tendency toward polarization and “post-factual” rhetoric. Against this global backdrop, there were reasons to expect dramatic confrontations at the ongoing session of the International Criminal Court’s (ICC) Assembly of States Parties (ASP). In recent years, discontent with the ICC has been growing, particularly among African states, culminating in three prominent withdrawals (on which see my previous post). If badly handled, the situation could lead to further withdrawals and setbacks for international criminal law.

The ASP has instead offered a promising glimmer of light in the gloom of 2016. On Friday 18 November the ASP held an “open bureau meeting” on the ICC-Africa relationship. The maturity of the discussion renewed my hope in the possibility of respectful listening, open-mindedness, sincere engagement and meaningful change.

Rather than drawing battle lines, delegations from all latitudes generally reached out in a very open and reflective manner. The sensationalist, oversimplified criticisms that are common in media and even academic commentary made little appearance. Instead, delegations generally advanced grounded, focused concerns and possible solutions.

For a great many states, the current impasse was a wakeup call. Instead of reacting to all concerns as attempts to undermine the Statute and the rule of law, delegations showed a sincere readiness for real conversations about the future of international justice. International justice must be inclusive justice. African states helped shape the Rome Statute system and will continue to do so. International justice must also be living and organic, adapting to experience. As the Ugandan delegate explained, a legislature can revise a rule based on experience and changed conditions, which is not necessarily to disrespect the original rule.

The discussion was at times moving. Some delegates at the podium shared heartfelt thoughts, their feelings of connectedness to other states parties, and even the personal tragedies that led them to support international criminal justice. Read the rest of this entry…

 

Take the Long View of International Justice

Published on October 24, 2016        Author: 

Last week there was much coverage about South Africa’s intended withdrawal from the Rome Statute of the International Criminal Court (ICC), as well as potential withdrawals by other states, including Burundi. The dominant theme in the media coverage was that this is a “major blow” or “devastating blow” to the ICC. I am hesitant about some of the gladiatorial metaphors. I suggest there are differences between a setback for the International Criminal Law (ICL) project, for human beings, and for the ICC. I also suggest a measured perspective, placing these events within a very long, turbulent, contested tale of human governance.

Historic perspective on a long-term project

Our lives are short and history is long. The tumults of our times loom correspondingly large to us, but the longer view can put crises in context. For example, many current criticisms of ICL reflect impatience and indignation that a fully-fledged, mature, international rule of law with global compliance has not been built in a few years. But it took centuries to produce current configurations of state governance and rule of law – the idea that human institutions might try to provide a better approximation of justice in human lives. And even after centuries of practice, errors, disasters, lessons and successes, the state law system is very, very far indeed from perfected. ICL itself is one effort to ameliorate to those flaws. We happen to be alive during a significant renovation in a centuries-old system.

My point is: past innovations in human governance took centuries, not months. They involved much contestation. If people see ICL in historical perspective, they will not expect quick fixes or linear progress. ICL entails politically, sociologically, legally and intellectually difficult and contestable changes to entrenched systems. There will be lessons to learn and criticisms to absorb. If it succeeds, it will do so after lurches, setbacks and pushbacks. Comfortingly, on the biggest scale, human governance has been moving in a positive direction for a long time. Read the rest of this entry…

 

Mexico: The War on Drugs and the Boundaries of Crimes Against Humanity

Published on May 26, 2015        Author: 

Mexico ratified the International Criminal Court (ICC) Statute in 2006. Since that time, in the context of the ongoing conflict with drug cartels, there are credible reports (from governmental and non-governmental sources) of tens of thousands of killings, tens of thousands of disappearances, and thousands of cases of torture. While the precise figures are disputed, the numbers are large. The 2014 kidnapping and disappearance of 43 Ayotzinapa students by police drew international outrage, but it is part of a bigger pattern.   In terms of the scale and nature of the crimes, these figures would appear to place the situation among the gravest within the ICC’s jurisdiction. Yet international criminal lawyers generally tend to give limited attention to the violence in Mexico, and hesitate to apply the label of crimes against humanity.

Against compartmentalization: drug-related violence as crimes against humanity?

In international criminal law practice, we are most accustomed to two configurations of crimes against humanity: state repression of political opponents, and atrocities by parties to armed conflict. By contrast, we tend to label the violence in Mexico as “drug-related violence” and therefore not as crimes against humanity.

But should we separate crimes into watertight compartments? After all, we recognize that an act of terrorism can also be a crime against humanity or war crime. We should not assume that organized crime, or responses to organized crime, must fall into a completely separate compartment. Instead, we should look at the elements of crimes against humanity. The motives behind the crimes (eg. economic motives or the laudable goal of restraining cartels) do not per se prevent widespread and systematic violence against civilians from constituting crimes against humanity.

Addressing factual controversy

Another obstacle is the difficulty of ascertaining the scope and patterns of the crimes, given the scale of crimes (thousands of killings and disappearances) and limited records. The Mexican government has launched several important initiatives to collect and systematize information on crimes and victimization, and NGOs have also embarked on valuable projects. Read the rest of this entry…

 
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Essence of Crimes against Humanity Raised by Challenges at ICC

Published on September 27, 2011        Author: 

Two recent challenges to the jurisdiction of the International Criminal Court in the Kenya situation bring out exciting questions of the essence of crimes against humanity. Defence counsel have challenged jurisdiction on the grounds that the violence in Kenya, which involved over one thousand killings and hundreds of rapes, did not constitute a crime against humanity (see: challenge, challenge and prosecution response).  This issue has divided the Pre-Trial Chamber in past proceedings.  As this is a jurisdictional challenge, the outcome can and almost certainly will be appealed to the Appeals Chamber.  The case raises extraordinarily difficult questions about the demarcation line between crimes against humanity and ‘ordinary’ crimes, and thus the role and scope of international criminal law.

Previously, in the decision to authorize the investigation, the Pre-Trial Chamber divided on this issue, with both the majority and the dissent providing compelling arguments. The ICC Statute requires a “State or organization” behind the crime against humanity; Judge Kaul in dissent argued for a more stringent standard of a “State-like” organizations, whereas Judges Trendafilova and Tarfusser adopted a more flexible “capacity” test for an organization.

The more stringent approach advanced by Judge Kaul has attracted support in thoughtful and well-reasoned recent scholarship.  My aim in this comment is simply to add that a convincing theoretical account can also be advanced on behalf of the majority’s broader approach.  I do not seek to point to any flaws in the reasoning of the dissent or the scholars favouring the more stringent approach, as their reasoning is perfectly sound and impeccable.  Indeed, I acknowledge that the “state-like” theory is internally coherent, reconcilable with limited doctrinal authorities and consistent with a sound theory of crimes against humanity.  My aim is modestly to lay alongside that theory another plausible theory, which is also internally coherent, consistent with the authorities and consistent with a sound theory of crimes against humanity. Read the rest of this entry…

 

ICC Review Conference: Taking Stock of Stocktaking

Published on June 3, 2010        Author: 

In the opening days of the Review Conference, one often heard references to the Review Conference as an “historic event” and a “second constitutional moment”.  With the significant exception of the possible adoption of the crime of aggression, which would indeed be a profound development, there is reason to ask whether the Conference is more a “constitutional moment” or just “another day at the office”.

My first blog highlighted the potential value of the stocktaking exercise.  Amending attitudes and understandings could prove as important, or more important, than amending the Statute.  I remain positive about the idea of stock-taking, the topics selected, the format adopted and the prominent panelists invited to open discussions.

However, given that the venue is a Review Conference, and given that the stocktaking is in part a substitute for actual amendments to the Statute, one might have hoped that the delegates would at least tackle a few issues of comparable difficulty and significance and take some meaningful decisions about their vision for international justice.  Instead, the discussions among States have adhered quite closely to safe, well-worn and self-congratulatory scripts.

Thus, for example, in the discussions on peace and justice, most States intervened to deliver an essentially similar message:  Peace is good.  Justice is good.  Peace and justice are not contradictory.  Except perhaps sometimes when they at least seem so, and such situations require careful thought and handling.  The last point is typically made in a knowledgeable tone hinting that the speaker has a few deep insights into how this is done (and giving the sense that different delegations might handle the balancing in very different ways).  Repeat 40 times in different voices and languages, with no real delving into controversies or solutions. Read the rest of this entry…

 
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ICC Review Conference Opens in Kampala; Features Intriguing Hybrid Character

Published on May 31, 2010        Author: 

The International Criminal Court Review Conference opened today, May 31, 2010 in Kampala, Uganda.   The Conference has drawn thousands of participants, including heads of state, ministers, diplomats and other State officials, NGOs, parliamentarians, academics, media and officials from international courts and from the United Nations (including the current Secretary General and his predecessor).  The conference is hosted by Uganda, the first State Party to refer a situation to the Court and a site of the Court’s earliest investigations.

 The Review Conference marks the first opportunity to consider amendments to the Rome Statute, which was adopted at a Diplomatic Conference in 1998.  The centre of attention on the agenda is the crime of aggression, which has brought to the fore contrasting visions of the role of the ICC and its relationship with other international institutions.  Other proposed amendments include war crimes and the ‘transitional provision’ (discussed below).  The scope of the Review Conference has expanded beyond discussion of amendments; participants have seized the opportunity for a deeper discussion on the future shape of international criminal justice.  Thus, a “stock-taking” exercise is taking place to discuss complementarity, cooperation, peace and justice, and the impact on victims and affected communities.

 AGGRESSION

 The crime of aggression presents by far the most controversial, the most complex and most profound questions.  Read the rest of this entry…

 
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