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Home Archive for category "International Criminal Law"

Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…

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The Shameful Twenty Years of Srebrenica

Published on July 13, 2015        Author: 

In the great catalogue of human misery, the July 1995 Srebrenica genocide merits a special mention. But as horrible as the slaughter of more than 7,000 Bosnian Muslim men and boys was – unquestionably the worst crime of the whole brutal Bosnian conflict – the repeated, ongoing and unrelenting denial of the crime is if not worse, then at least as depressing. Today, twenty years on, that revisionist denial is strongest where it matters – in Republika Srpska and in Serbia – and its strength demonstrates the continued, long-term inability of these communities to come to terms with the past.

The denial is manifold, in forms both hard and soft. It ranges from a complete rejection that any crime took place, to disputing the number of victims or who the victims were, to emphasizing crimes against Serbs around Srebrenica or inflating the numbers of Serbs killed, to disputing the characterization of the crime as genocide as if that makes some actual moral difference. And, it needs to be said, that denial is virtually unaffected by whatever the International Criminal Tribunal for the Former Yugoslavia or the International Court of Justice said on the matter.

To demonstrate the scale of denial in cold, hard numbers, it suffices to take a look at a February 2012 survey of public opinion in Bosnia, sponsored by the Belgrade Centre for Human Rights and the OSCE and conducted by Ipsos Strategic Marketing (detailed results on file with me). The survey found that of the (mostly Serb) population of the Republika Srpska only 59.2% say that they even heard of a massacre in Srebrenica, while only 34.8% of the people who say that they’ve heard of the crime believe that it actually happened. Thus, of the whole RS population 40.8% say they’ve never even heard of any massacre in Srebrenica, 38.6% say that they’ve heard of it but that it never happened, and only 20.6% believe it did. That, dear readers, is what ‘truth and reconciliation’ in today’s Bosnia look like.

Read the rest of this entry…

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The Emerging Reparations Case-Law of the ICC Appeals Chamber in Comparative Perspective

Published on June 12, 2015        Author: 

Reparations for victims of international crimes or serious human rights violations have received increasing attention from international courts. The most recent example is the Judgment on the Appeals against the “Decision establishing the principles and procedures to be applied to reparations” rendered by the Appeals Chamber (AC) of the International Criminal Court (ICC) in Lubanga on 3 March 2015. (See this previous post.) The present contribution compares how three key reparations issues are addressed by the ICC Appeals Chamber and by two other courts: the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Inter-American Court of Human Rights (IACtHR). Besides the ICC, the ECCC is the only international or hybrid criminal court where victims can claim reparations. The IACtHR’s reparations case-law has been seminal for decades, and references to its case-law by the ICC and ECCC reflect an ongoing dialogue. The three issues on which the courts are compared are: who can claim reparations, who is obliged to pay reparations, and what reparations can victims obtain

Who can claim and benefit from reparations?

Under rule 85(a) of the ICC Rules of Procedure and Evidence (RPE), victims are “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. Only victims who suffered harm as a result of the crimes for which the accused was convicted are eligible to claim reparations against him/her (AC Judgment, para. 8). At the ECCC, rule 23bis(1) is the equivalent rule 85(a) defining victims. However, unlike the ICC, the ECCC rules and case-law require a direct causal link between the victim’s harm and the crimes for which the accused was convicted (rule 23bis(1); Case 002/01, Trial Chamber Judgment, para. 1114).

Given the absence of a direct causal link requirement before the ICC, the AC should have considered sexual and gender-based violence as harm resulting from the crimes for which Lubanga was convicted (AC Judgment, paras. 196-198). During his trial, there was robust evidence of sexual exploitation of minors by armed forces or groups. The UN Special Representative for Children and Armed Conflict considered such sexual exploitation as providing essential support to the armed groups and, thus, as active participation in hostilities (Lubanga, Trial Judgment, para. 630). Accordingly, this sexual exploitation was arguably linked to the child soldiers-related crimes for which Lubanga was convicted. The AC should therefore have upheld the Trial Chamber’s finding of reparable harm from sexual and gender violence (paras. 207-209). Read the rest of this entry…

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What Lies Beneath the ‘G’ Word? Genocide-Labelling and Fact-Finding at the UN

Published on May 28, 2015        Author: 

In late 2013, the Special Adviser on the Prevention of Genocide warned that “there is a risk of genocide” in the Central African Republic (CAR). A year later, with thousands dead and hundreds of thousands displaced, a UN-mandated Commission of Inquiry (CoI) determined that genocide had not occurred because “the threshold requirement to prove the existence of the necessary element of genocidal intent ha[d] not been established…” (Executive Summary). Their answer seems clear, and yet this post will argue the Commission may have reached the wrong conclusion. In doing so, it will also draw attention to discrepancies between the UN’s classifications of genocide and raise questions about the powers of fact-finding bodies more generally.

It should be noted at the outset that the CoI left little doubt that serious crimes had been committed in CAR. Established at the request of the Security Council, the Commission had a mandate to investigate violations dating back to January 2013 when Séléka fighters began their march on CAR’s capital, Bangui. Though some of the worst violence took place on its watch, the Commission could not “establish with any degree of accuracy the number of people who were killed in the conflict.” Conceding that the available estimates “fail to capture the full magnitude of the killings that occurred”, it nevertheless concluded that “all the parties were involved in serious violations of international humanitarian law and gross abuses of human rights including rape and other gender based sexual offences and violations.”

What about genocide?

The CoI’s analysis of this key question begins with the applicable law, where it notes that genocide requires the actus reus (‘specific acts committed against specific groups’), the mens rea of specific (genocidal) intent, and – in line with the Rome Statute’s Elements of Crimes – ‘a manifest pattern of similar conduct directed against the targeted group’ (para. 450). Against this backdrop, the report establishes that the genocide label would prima facie apply only to acts committed by the Christian anti-balaka against CAR’s Muslims. Crucially, genocide would not be applicable to attacks committed by Muslims against Christians. The Commission then assesses the case law of several tribunals in order to distinguish ethnic cleansing from genocide.

This is where the legal analysis takes a perplexing turn. Before it has a chance to examine the legal elements of genocide, the CoI says (para. 452):

…the information available to it reveals repeated instances of crimes against humanity amounting to the fact pattern of ethnic cleansing committed by the anti-balaka in the areas in which Muslims had been living. In terms of criminal responsibility, however, the Commission is of the view that these acts of ethnic cleansing would best be prosecuted with (sic) under the rubric of crimes against humanity, which is the crime category that is explicitly recognized in the Rome Statute and in the relevant legislation of the CAR… [T]he facts of the situation indicated that… crimes against humanity… capture the full essence of the policy of ethnic cleansing that was pursued.

There are two problems with this conclusion. Read the rest of this entry…

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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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The Armenian “Genocide”?

Published on May 11, 2015        Author: 

Given the difficulty in proving the special intent to destroy, the charge of genocide is not one to be brought lightly.

No-one can reasonably argue with the clear statements made by German President Joachim Gauck in his speech on Armenia held on 23 April 2015: “one hundred years ago, hundreds of thousands of members of the Armenian people” became “the victims of planned and systematic murder”. It is probably also accurate to say that these acts, for which the Ottoman Empire was responsible, were perpetrated against the Armenians “because they were Armenians”. But did these acts really constitute “genocide”, as Gauck further stated, in a legal sense?

According to the Convention on Genocide adopted in 1948, we are facing a genocide when certain acts are committed against a “national, ethnical, racial or religious group” with “the intent to destroy [it] in whole or in part”. The term derives from the Greek γένος (race, tribe) and the Latin caedere (to kill). The Armenians doubtlessly constitute such an (ethnic and religious) group; however, did the Turkish perpetrators really act with the required intent to destroy? Is it even possible to designate prior conduct using a legal category that did not exist at the time said conduct occurred?

These are by no means mere juristic quibbles. The prohibition of genocide constitutes so-called peremptory international law (ius cogens). The “prevention and punishment” demanded by the Convention is thus directed not only at the perpetrating and territorial State, but at all States on our planet. They are all called to prevent genocide and – if prevention is unsuccessful – to punish it. The extraordinary degree of wrongdoing inherent in genocide – the attack on one of the abovementioned groups and the denial of its right to exist implicit in this attack – makes it the “crime of crimes”, to which particular stigma is attached. Thus it is quite understandable that a State should try to defend itself against the stigmatisation associated with genocide. Read the rest of this entry…

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Reparative Justice after the Lubanga Appeals Judgment on Principles and Procedures of Reparation

Published on April 7, 2015        Author: 

On 3 March 2015, the Appeals Chamber (AC) of the International Criminal Court (ICC) rendered its judgment on the principles and procedures of reparation. The decision is of systemic significance for international criminal justice, since it establishes a liability regime for reparations that is grounded in the principle of accountability of the convicted person towards victims. This new “principle of liability to remedy harm’ complements the punitive dimensions of ICC justice (e.g. conviction, sentence). It differs from purely civil forms of liability due to its connection to criminal proceedings which requires reconciliation of both, the rights of victims and the rights of the convicted person. This contribution analyzes the merits and risks of the judgment It argues that the decision marks significant progress over the initial Trial Chamber decision (TC), since it increases the expressivist dimensions of reparation proceedings and the prospects of participatory justice. But it also highlights existing tensions in the decision, such as its limited attention to societal frictions created through reparations, and its minimalist approach to non-accountability related objectives of reparation.

Read the rest of this entry…

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On the Entirely Predictable Outcome of Croatia v. Serbia

Published on February 6, 2015        Author: 

This week the International Court of Justice delivered its judgment in the genocide case brought by Croatia against Serbia. The result was entirely predictable: the Court quite correctly dismissed both the Croatian claim and the Serbian counterclaim. I wrote about this on the blog before (here and here), and have also written a reaction piece intended for a lay audience for the Serbian online magazine Pescanik, which is available in English here. The nationalist reactions to and misinterpretations of the judgment in Croatia and Serbia have been equally predictable, if no less tiresome.

For its part, the Court displayed a laudable degree of both restraint (which is after all de rigueur for the ICJ) and consensus (not so much). The Court’s general approach was entirely consistent with its 2007 Bosnian Genocide judgment: repeatedly finding that acts that qualified as the actus reus of genocide were committed, but without the necessary mens rea (genocidal intent), so that there was no genocide, while the Court had no jurisdiction to determine state responsibility for any other internationally wrongful act. While there are some interesting paragraphs regarding the assessment of evidence etc, the Court basically completely followed the factual findings of the ICTY (including the controversial Gotovina appeals judgment), and rightly so. By following this general approach the Court entirely avoided some of the most interesting legal issues raised in the case, for example the question of state succession to responsibility (i.e. whether Serbia could have succeeded to the responsibility for a wrongful act of its predecessor state, the SFRY), or the question of the attribution to Serbia of the conduct of the Croatian Serb separatists by virtue of the relevant control tests.

The one question that did divide the Court was the issue of its temporal jurisdiction under the compromissory clause in Article IX of the Genocide Convention. By 11 votes to 6 the Court found that it did have the jurisdiction to examine Serbia’s responsibility for genocide allegedly committed by the SFRY (i.e. before Serbia’s independence) by virtue of succession to responsibility, while finding that it ultimately did not need to decide on the succession question because no genocide was committed (most notably during the destruction of the town of Vukovar by the Yugoslav National Army). A number of judges wrote separately on this point of the temporal extent of the Court’s jurisdiction.

On all other matters the judges were either unanimous or virtually unanimous. Even the Serbian judge ad hoc voted for the dismissal of the Serbian counterclaim, while the Croatian claim was rejected by 15 votes to 2, the two being the Croatian judge ad hoc (who wrote a rather half-hearted three-page dissenting opinion, which doesn’t really say much except that he dissents) and Judge Cancado Trindade. Judge Cancado Trindade indeed did not disappoint; in an awesome display of his Cancadotrindadeness he wrote an opinion of some 142 pages (the Court having written a total of 153), dissenting about, well, everything. The summary of his conclusions runs from ‘first’ to ‘fourty-fifth,’ and in Latin, as is only proper (that’s quadragesimus quintus for you h8ers out there).

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Two Cheers for the ICTY Popovic et al. Appeals Judgement: Some Words on the Interplay Between IHL and ICL

Published on February 4, 2015        Author: 

Two years ago, I criticised the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) seized of the Prosecutor v. Popovic et al. for incorrectly applying international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and international criminal law (ICL), I referred to the Popovic et al. Trial Judgement as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL, thereby penalising the behaviour of warring parties in times of armed conflict, if such behaviour formed part of a larger, criminal plan”. Now, I am happy to note that the Appeals Chamber has set the IHL-record straight.

Friday, some 4.5 years after the rendering of the Trial Judgement, the Appeals Chamber rendered its long-awaited judgement in Prosecutor v. Popovic et al. The case concerned the take-over by the Bosnian-Serb army (VRS) of the Bosnian-Muslim enclaves Srebrenica and Zepa and the crimes committed by the VRS in the aftermath, including the (genocidal) murder of several thousand (the actual number was disputed) able-bodied Muslim men. Of the various ICTY cases dealing with these events, this multi-accused case was known as theSrebrenica case”. Since the trial, one of the accused has passed away and another did not appeal his conviction. The remaining five men saw their convictions mostly upheld, bringing to a close this interesting case with accused from different components and various hierarchical levels of the Bosnian-Serb forces. Two life sentences, one 35-year sentence, and one 13-year sentence were affirmed. One sentence was reduced by one year to 18 years.

All in all, this is a good result for the Tribunal, which noted in its press release that this completes the ICTY’s largest case to date. But it is an especially good outcome for the Prosecution, as the convictions at trial were mostly upheld, with a couple of exceptions: Read the rest of this entry…

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ICJ to Hand Down Croatia v. Serbia Genocide Judgment on 3 February

Published on January 22, 2015        Author: 

As reported in Serbian and Croatian media yesterday, and officially confirmed by the Court today (press release). As for what the Court will decide, it will most likely find that no crime in the conflict in Croatia constitutes genocide, that it lacks the jurisdiction to decide on the responsibility of either state for any other crime, and that accordingly it has to reject both Croatia’s claim and Serbia’s counterclaim. By ‘most likely’ read ‘virtually inevitable, so that I would fall of my chair if the Court did anything else’ – see more here.  We’ll see whether the Court will say something interesting on various ancillary substantive questions before it reaches its main conclusion.

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